Do Supreme Court marriage decisions make voting pointless?

June 26, 2013

By John Seiler

Several CalWatchDog.com readers I never heard from before called me today about the Supreme Court decisions on marriage. They all were wondering if their votes on Proposition 8 in 2008 were pointless, along with voting in general.

Passed in 2008, Proposition 8 banned same-sex marriage in California. People on both sides worked hard and spent money on the campaign. It was hard fought, and narrowly decided, 52-48. It would have been repealed in 2014 by another initiative.

But today, the U.S. Supreme Court made every vote on Prop. 8 in 2008, and every vote that might have been cast in 2014, utterly pointless. Worse than pointless. I spent time and gas money to go to the polling station in 2008. I took an hour off work. Wasted.

The court decided that the case didn’t have standing because Gov. Jerry Brown, the supposed top officer in the state (actually, it’s the people of California), didn’t appeal the case, only some people who backed Prop. 8. That means any initiative now passed in the state is operative only if the sitting governor agrees with it.

As constitutional scholar Hadley Arkes writes:

“if the state has a Democratic governor … he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution. And by the holding today in the case on Proposition 8 in California (Hollingsworth v. Perry), the backers of the constitutional amendment will have no standing in court to contest the judgment. Constitutional amendments are meant to secure provisions that will not be undone by the shift in season from one election to another. But with the combination of these two cases today, any liberal governor can virtually undo a constitutional amendment on marriage in his state.”

And a Republican governor, for that matter, could undo constitutional amendments in other states, such as those passed in Democratic states advancing gun control.

Strangely, the decision has turned governors into virtual dictators.

Reagan elections

But there’s more. As Ryan W. McMaken points out on LewRockwell.com, Justice Anthony Kennedy, who provided the deciding vote and wrote the majority decision in the case overturning the federal Defense of Marriage Act, was appointed by Republican President Ronald Reagan, a conservative.

A lot of conservatives voted for Reagan for president six times, in the 1968, 1976, 1980 and 1984 primaries; and in the 1980 and 1984 general elections. But would they have supported him in any of those elections if they had been told his election would, decades later, lead to legal recognition for same-sex marriage? As late as 1984, it wasn’t even on the radar screen of issues anywhere.

As Time magazine noted today, “Seventeen years after a Democratic president signed a federal law defining marriage as between a man and a woman [in 1996], the U.S. Supreme Court struck it down Wednesday, capping one of the fastest civil rights shifts in the nation’s history.”

So, go back again … to 1968, 1976, 1980, 1984. This just wasn’t part of the political landscape at all. But Reagan advertised himself as a “traditional conservative,” and won the critical and strong support of the late Rev. Jerry Falwell’s Moral Majority.

But it was all meaningless. Voting meant nothing. Bill Murray had it right in the 1979 movie “Meatballs”: It just doesn’t matter!