Kristol: Wrong Again

 by Mustang Bobby

William Kristol began his illustrious tenure at the New York Times last winter by getting his facts wrong in his very first column when he cited the wrong source for a quote. Since then he has managed to demonstrate his flair for the error in both perception and fact, and today is another case in point.

In trying to make the case that John McCain is the exception to the rule that the current crop of GOP candidates running in special elections in previously safe Republican strongholds stink on ice (0-3), he cites a number of factors that bode well for Mr. McCain, including the ruling last Thursday by the California State Supreme Court overturning the ban on same-sex marriage.

On Thursday, the California Supreme Court did precisely what much of the American public doesn't want judges doing: it made social policy from the bench. With a 4-to-3 majority, the judges chose not to defer to a ballot initiative approved by 61 percent of California voters eight years ago, which defined marriage as between a man and a woman. In 2003, the Massachusetts Supreme Judicial Court redefined marriage in that state, helping to highlight the issues of same-sex marriage and judicial activism for the 2004 presidential campaign. Now the California court has conveniently stepped up to the plate.

Obama's campaign issued a statement that its candidate "respects the decision of the California Supreme Court." The McCain campaign, by contrast, said it recognized "the right of the people of California to recognize marriage as a unique institution ... John McCain doesn't believe judges should be making these decisions." Since the next president will almost certainly have one Supreme Court appointment, and could have two or three, this difference on judicial philosophy could well matter to voters — and in a way that should help McCain.

Furthermore, the action of the California court will remind voters of the Defense of Marriage Act, which says a state is not required to recognize same-sex marriages performed in other states and which was passed overwhelmingly by Congress and signed by Bill Clinton in 1996. McCain voted for and supports it. Obama opposes it.

If Mr. Kristol had bothered to read the history of the case or the ruling itself rather than launch his typical right-wing volley of "activist judges" missiles, he would have known that the court ruling was not making social policy from the bench at all, but doing exactly what the court was created to do in the first place: interpret the laws and the constitution of the state. The California Assembly had twice tried to pass laws legalizing same-sex marriage, only to have them vetoed by Gov. Arnold Schwarzenegger, who wanted the State Supreme Court to first decide whether or not such laws would pass constitutional muster. The court so ruled on Thursday, citing only the state constitution and pointedly avoiding the social policy aspect of the case.

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