February 24, 2004,
In 2000, the people of the state of California voted by a margin of 61 percent to 39 percent to pass Proposition 22, which defined marriage as the union of a man and a woman. Having openly defied the overwhelming opinion of the voters of California, the city of San Francisco will now sue to overturn Proposition 22 on the grounds of the equal-protection and due-process provisions of the California State constitution. Does anyone believe that the framers of California's constitution intended these provisions to have this effect? Could there possibly be a more blatant effort to override democratically expressed public opinion? If the public stands for this, there will never be limits to judicial activism again.
Note well, the entire edifice of state and federal Defense of Marriage Acts, including state constitutional amendments, could easily be swept aside by a decision of the United States Supreme Court to impose gay marriage on the nation. Such a decision would most probably be based on equal-protection and due-process grounds exactly the grounds by which San Francisco now attempts to nullify the clearly expressed will of the people of California. If you believe that anything short of a Federal Marriage Amendment can stop this process, you are dreaming. Acting on this issue is an easy thing to do. Write your representatives in support of the Federal Marriage Amendment, and support the reelection of the president. At a minimum, write to protest the events in San Francisco.
There's been a lot of commentary on how San Francisco mayor Gavin Newsom's flouting of the law is not nearly so bad as the conduct of former Alabama chief justice Roy Moore. Moore disobeyed a court order. But Newsom is still making his case, and has not been definitively ordered to cease by a judge. Yet Moore's defiance resulted only in a bit more time during which a memorial to the Ten Commandments remained where it was not supposed to be.
What Mayor Newsom is doing has much deeper social and legal consequences and is meant to have those consequences. Newsom is intentionally creating legal, political, and cultural facts on the ground designed to overturn current law both in California and beyond. Newsom is purposely trying to initiate legal challenges to state and federal defense of marriage acts. And he is doing this is two ways by encouraging copycat civil disobedience in other parts of the country, and by generating "married" couples who can file lawsuits, in California and beyond. Especially because he is creating couples who can file suits, Newsom's actions are far more disruptive and consequential than Judge Moore's. And the judges who have refused to swiftly shut down this obviously lawless action are equally to blame.
Newsom is using extra-legal means to bring a major national debate to resolution on his own terms. By creating "married" couples, Newsom is trying to put the cultural, political, and legal momentum inherent in "possession" behind his side of the argument. If Newsom is allowed to determine a major policy debate by resort to extra-legal means, the damage to social trust and civil comity in our divided nation will be immense.
If John Kerry is elected president of the United States in the face of this, what will happen to conservatism? This goes way beyond gay marriage. Since 9/11, conservatives have felt pretty confident about their position. I say we are living on sand. Yes, we have the presidency and, by the narrowest of margins, Congress. The Left controls the other key levers of the culture. If we lose the presidency, we lose the courts, and we lose the culture. It is only our political success that has given us a counterweight to the liberal domination of the culture. I know my work on Middle East-studies reform would have been impossible without a Republican Congress. In a thousand other ways, our political success has raised up spokesmen to counter the mainstream media, the academy, Hollywood, the law schools. If we lose the presidency and lose it in the face of the defiance of the law now taking place in San Francisco we will be rolled, and rolled badly, from here on out.
I have argued that even the Michigan affirmative-action decisions are not as bad a loss as they might seem. We still have ways to turn that battle. But if we lose the presidency now and lose it in the face of San Francisco we lose all. No court will ever pay us any mind again. They will fear and bow to the Left alone.
Wake up conservatives. Your views and your votes are rapidly being rendered meaningless. Neither NRO nor FOX can save you if you won't save yourselves. Write your representatives in protest of what is happening in San Francisco. Reelect the president.