Column: Trusting the will of the people
SAN DIEGO -- What do Americans believe anymore? Is it simply whatever is convenient to our politics? Our inconsistencies seem to ring louder than ever. Or do we just have short memories for what we said a few moments ago?
When I listen to conservatives and liberals stake out their respective positions on gay marriage, I have to wonder if they're listening to themselves talk.
This week, the Supreme Court is hearing oral arguments against California's Proposition 8, the 2008 ballot initiative that sought to amend the state constitution to ban gay marriage, and the federal Defense of Marriage Act, which defined marriage as between a man and a woman and declared that states need not recognize same-sex unions forged in other states.
It's astounding that -- here we are, 225 years after the ratification of the Constitution -- and Americans are still haggling over federalism, states' rights, the three branches of government, and our system of checks and balances.
Conservatives who oppose gay marriage are urging the Supreme Court not to overturn the will of the people by striking down Proposition 8. And it seems like just yesterday they were arguing that the court should overturn the will of the people by striking down ballot measures they disagreed with, such as ones allowing for medical marijuana.
Liberals are no more consistent. They're making the same arguments in reverse. They want the Supreme Court to strike down Proposition 8, but they also want it to keep hands off ballot initiatives legalizing medical marijuana.
This isn't so complicated. The matter was settled back in 1803, when the Supreme Court -- in Marbury v. Madison -- established the principle of judicial review. Legislatures make laws, and the courts review whether those laws are in line with the Constitution. When voters -- through the initiative process -- act as citizen legislatures, they have to put up with the same review by the courts.
Meanwhile, you'll also find inconsistencies on the issue of immigration. Those who support cracking down on illegal immigrants usually favor the approach of the state of Arizona, which in 2010 deputized local and state police to act as surrogates for federal immigration agents. They maintain that states have the right to act unilaterally when the federal government drops the ball. Opponents of the law call this an overreach, and insist that states can't go rogue and make up their own immigration policies.
Except, that is, when we're talking about the state of Utah, which responded to what happened in Arizona by approving the so-called Utah Compact, a declaration of specific principles that state lawmakers said should guide the immigration debate. They include opposing policies that separate families, recognizing the economic contribution of immigrants, and instructing law enforcement to focus on criminal activity rather than civil violations of immigration law.
The left loves all this, so much so that it's blind to the contradiction. How do you say that Arizona doesn't have the right to make immigration policy but Utah does?
Again, those on the right don't get away unscathed. They support what Arizona is doing in the name of protecting the right of states to chart their own immigration course, but apparently that right ends at the Arizona-Utah border. They don't support the more tolerant approach.
Back to gay marriage, what happens when opponents argue that we ought to respect the will of the people to ban same-sex unions, but then -- in a state such as California -- the will of the people suddenly changes?
It's true that, in 2008, Proposition 8 was approved 52 percent to 48 percent by voters in the Golden State.
Yet a new Field Poll, released at the end of February, shows a significant amount of voter remorse. It found that 61 percent of California voters today approve of same-sex marriage, with only 32 percent opposed.
Now what? This is uncharted territory. The Supreme Court is deciding the constitutionality of a ballot measure that voters seem to have abandoned. The new "will of the people" is more tolerant than the old one.
Can we expect those opponents of gay marriage who, just a few moments ago, were arguing that the court must respect the wishes of California voters to join the protesters who are calling for Proposition 8 to be overturned?
Don't laugh. This would be the morally consistent thing to do, which means that -- in our current frame of mind -- it's not likely to happen.
Ruben Navarrette's email is firstname.lastname@example.org.