Back to the Future with Debra Saunders

Debra Saunders would probably be happy living in the deep south.  Pre-Civil War.  She may picture herself as a Southern Belle in wide hoop skirts sipping mint juleps on the verandah while darkies peel her grapes.  At least that’s the impression this reader got after reading her Chronicle column this morning.  No, she is not spouting right wing rhetoric, nor pining for the good old days. She’s simply saying she wants the voters in each state to decide what marriage laws will apply. If State A says ok for same sex couples to marry, she’s all for it, but if State B says no way, she’s for that too. 

She prefaces this whole “let the voters decide” spiel with her avowed support for gay marriage.  She has lots of gay friends, she hastens to assure us and she would never be happy if California passed a law allowing them to marry. (So long as those who object don’t have to perform the ceremonies.)

That kind of reasoning would have kept slavery in half our country. It would have denied black people and women the right to vote.  It would have prevented interracial couples from marrying. And it would have allowed states to deny basic reproductive freedom to women.  Oh, yeah, she uses Roe v. Wade as an example, pointing out that the Supreme Court could go back on precedent in the choice cases and re-interpret the Constitution to take away a women’s right.

But so could the states’ voters make similar changes if it was left up to them. With voter suppression statutes being proposed in many states, and not just the Southern ones, it is only the courts that keep the legislatures and the voters in check. If a measure that is enacted through popular vote is unconstitutional, it cannot stand.

If we believe in basic equality, then all people should be free to marry whom they choose and where they choose, not be forced to move if their state denies a right that another state allows. This is a fundamental freedom. In this she parts company from even her conservative gay friends, who have filed a “Friend of the Court “ brief supporting gay marriage in the Proposition 8 case now before the U.S. Supreme Court.

Instead, she echoes another conservative, Bush Assistant US Attorney General known for his authorship of the “torture memo”, now a law professor, who states: “It would be a mistake for the Supreme Court to use this case to basically cut off the political process and impose its own view on a moral and political question that is very divisive.”

Wrong. It would be a mistake to leave such an issue, one of basic human rights, up to the whim of voters. That’s why we have a Constitution and a Supreme Court.  Do they always get it right? No, especially with the Bush era court we are now stuck with. But they will, eventually.  Just as the Court did away with the policy of separate but equal in the 1954 case of Brown v. Board of Education; and a year later reversed its 1905 Decision in Lochner v. New York decision that allowed gouging of employees under a convoluted interpretation of contract law, stating in Williamson v. Lee Optical of Oklahoma “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought."

Put away the picture hat, Debra, and join us in the 21^st century, crossing our fingers that this Court does the right thing!