The Right Coast

March 20, 2004
Is Democracy a Smokescreen?
By Michael Rappaport

UCLA Law Professor William Rubenstein writes, in a New York Times op ed, that politicians of the left and right are hiding behind federalism and separation of powers in order to avoid taking a clear position on same sex marriage. Perhaps, but Rubenstein is also missing an important point. While some people may feel so strongly about the issue, from one side or the other, that they do not care how same sex marriage is established, for many people the process by which it occurs is important and perhaps crucial to its legitimacy. If a significant majority in a state opposes same sex marriage, but it is imposed by the judiciary, one might be against it for that reason -- because of democratic values, because an institution like that needs democratic legitimacy to be successful, and because the democratic process might involve compromises that would make it more successful than the form of same sex marriage that the courts would require. One would have thought these lessons had been learned from the abortion example, but I suppose not.