Tuininga: Marriage, the Court, and the Erosion of Liberal Democracy


Today on Public Discourse, Matthew Tuininga argues that same-sex marriage advocates are undermining the future of democratic self-government through the courts:

There is a lot of good analysis on the Supreme Court's decisions last Wednesday to throw out California's Proposition 8 case (Perry v. Hollingsworth) and to overthrow key parts of the federal Defense of Marriage Act (DOMA) (United States v. Windsor). Same-sex marriage supporters are elated at the incredible progress the gay rights movement has made in recent years. The more optimistic marriage defenders point out that the decisions don't really change much: they simply refer the argument over marriage to the states, to let the democratic process, and civil society, do its work. And who could argue with this sort of federalism?

But of course, both of these positions miss an important fact. In both Supreme Court decisions a law passed by a democratic majority through the democratic process was overturned by judicial fiat. What we are seeing here is yet another case of reliance on nondemocratic power structures in order to overcome or bypass a democratic process that stubbornly refuses to go its way, or at least to go its way quickly enough.

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