"Who does he think he is, anyway? Thirty-one states have put the issue of same-sex marriage to a vote in recent years, and every single one of them has rejected it. Now, here comes another activist judge blatantly disregarding the will of the majority and holding that "We the People" can't do what we want. It's an outrage, I tell you, an outrage."
This more or less captures the tone of much of the criticism of Judge Vaughn Walker's decision in Perry v. Schwarzenegger, holding California's Proposition 8 unconstitutional. This criticism is based on a deep misunderstanding of what "We the People" means. The United States Constitution is premised on the notion of majority rule, but with a very important caveat.
The Framers of our Constitution fully recognized the dangers as well as the strengths of majority rule. They understood that the majority will sometimes act in ways that are not truly public-regarding, but are instead a reflection of prejudice, intolerance, ignorance, panic, and crude self-interest. A profound puzzle the Framers encountered was how to deal with this danger.
The idea of a Bill of Rights that would forbid the government (the majority) from depriving individuals of certain fundamental liberties without good cause certainly had appeal, but as James Madison acknowledged, these "parchment barriers" could not meaningfully restrain the majority from doing what they want, if the majority have the final word on what those liberties mean.
It was here that reliance on judges to give meaning and vitality to our constitutional rights entered the picture. Because judges have life-tenure, and are therefore substantially insulated from the whims and demands of the majority, and because judges are trained to take the long-view and to bring a more dispassionate perspective to the often vexing task of interpreting and enforcing our liberties, the Framers hoped they could act as an effective restraint on majority will in the realm of our most fundamental freedoms.
It is therefore no surprise that judges sometimes take positions in support of the liberties of vulnerable minorities -- even in the face of often fierce majority opposition. Indeed, that is precisely what our judges are supposed to do. It is what the Framers intended them to do when they adopted the Bill of Rights 220 years ago.
Now, this does not mean that judges are meant to be Platonic Guardians who can cavalierly substitute their own personal and political values and preferences for the will of the majority. In almost all spheres of governance, judges have little, if anything, to say. Such profound questions as whether we go to war, raise or lower taxes, bail out the banks, build new highways or schools, create a Social Security program, or amend our immigration policies are matters that are largely, if not entirely, beyond the purview of judges. But when it comes to the protection of fundamental personal liberties and the rights of vulnerable minorities, judges rightly play a central role.
In Perry, Judge Vaughn, who was initially nominated by President Reagan and then ultimately appointed by President George H. W. Bush, did exactly what our judges are supposed to do. He determined the facts, considered the legal arguments, identified the governing precedents and constitutional principles, and then applied those principles and precedents in a clear-eyed, even-handed, and forthright manner.
In effect, what Judge Vaughn concluded is that, although the majority may want to deny gays and lesbians the freedom to marry, that "want" is not in itself sufficient justification for denying them this fundamental liberty. Rather, to justify Proposition 8 as a matter of constitutional law, the majority must have a fair-minded and objective reason that justifies the decision to deny gays and lesbians this basic human right.
Judge Vaughn's decision is perfectly in line with the Supreme Court's landmark decisions in Brown v. Board of Education, which held that separate is not equal, and Loving v. Virginia, which held that it is not "equal" to deny individuals the freedom to marry a person of another race. Perry is right as a matter of constitutional law, even if it makes the majority unhappy, for the very same reasons Brown and Loving were right.
In our nation, the majority can do most things, but it cannot constitutionally discriminate against individuals who are members of a long-despised minority with respect to their most fundamental personal freedoms just because they want to do so, because it is traditional to do so, or because they want to enlist the authority of the state to impose their religious and moral beliefs on others.
Despite all the sound and fury, despite all the warnings of divine retribution, if we reflect calmly on the very best and most cherished of our national values, if we follow Abraham Lincoln's advice and listen quietly to the "better angels of our nature," we will know that, like Brown and Loving, Perry is a matter of simple justice.
Richard (RJ) Eskow: Too Old to Rock 'n' Roll, Too Young to Die Ruin Social Security
Don't Fear the Boomers. Despite the scaremongers' attempts to incite generational war, people born between 1946 and 1964 are not going to destroy Social Security. But don't just take my word for it. Ask an actuary.
http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL
One can read the whole document, but I would certainly read the conclusions starting on page 109.
Many of those who wish to deny marriage to Gay and Lesbian couples (not to mention those defending prop 8 in the trial) seem to be engaging in sloppy legal reasoning. The talking points often parroted are elegantly addressed in the decision. The decision shows how prop 8 cannot withstand a rational basis review or strict scrutiny.
I would hope that in the future those who would wish to create laws receive some sound, impartial legal advice regarding constitutional implications before placing the electorate through all of this. If anything this had been a kind of civics lesson for those who are unfamiliar with the constitution and precedent and the role of the courts, a legitimate branch of no lesser stature in our American government.
All the best,
I agree the opinion is historical, and should be read by students, church groups, book clubs, civic groups and anyone who would like a better understanding of the constitution, and this issue directly. I loved your comment "rational rays of sunshine", as I feel that the treatment of important issues has been obscured by adrenaline filled radio and the like, treating everything as if it were a partisan football game. In fact, this decision is something all Americans should consider and appreciate just as other decisions that have addressed discrimination in the past are widely lauded today.
I look forward to the day when this is all behind us, with all citizens treated with justice and equality.
Best regards to you. I am glad to be a fan of yours.
Two plus two equals four, and two plus three equals five. For certain reasons (mostly the afore mentioned progressive morality) the Fives would like to be recognized as fours. The fours are fine with fives, they would like the fives to be happy, they are not “fiveaphobic”, they simply want four to be four and five to be five, yet the California fours are denied their right to vote on this.
Yes, there is a civil rights violation, but it is not discrimination. It is judicial activism against the will of the people.
I've seen your argument before, that calling same-sex unions marriages is calling an apple an orange. You're wrong, we're merely talking about different kinds of apples. Monoracial, heterosexual marriages might be braeburns, interracial marriages might be red delicious, and same-sex marriages may be granny smiths, but they are all apples.
You'll fail miserably. My guess is that you wouldn't do any better than randomly assigning them.
Now do the same with DNA samples. Take DNA sequences from 100 people and categorize them on relatedness. Again you'll fail miserably.
Now do the same with DNA samples from males / females. You'll get roughly 100% correct.
How is age any less arbitrary than maleness or femaleness?
Romer v. Evans (1996). By a 6 -3 vote, the Court struck down a Colorado referendum that amended the Colorado Constitution to prohibit treating gays as a protected class under Colorado antidiscrimination laws, ruling that singling out gays for non-coverage under the civil rights laws violates the Equal Protection Clause with no rational reason for the discrimination. Needless to say, the facts and legal reasoning of Romer are extremely relevant in the California case.
Lawrence v. Texas (2003) Also by a 6 -3 vote, the Court struck down state criminal laws on consensual sodomy on equal protection grounds, because these laws are typically applied only to same-sex partners.
Kennedy was the AUTHOR of both opinions. This probably means that there will be at least 5 votes to affirm Judge Walker. Scalia may have to do judicial gymnastics to avoid grudgingly concurring in a decision to affirm.
In Lawrence, Scalia wrote:
"If moral disapprobation of homosexual conduct is 'no legitimate state interest' ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."
Scalia may well choose not to eat his words because doing so would cost him too much influence over other justices in future close cases.
The judge struck this provision down on the Constitutional basis that such authority was not delegated to the Federal government, and that the States alone had power to define marriage.
How does that jibe with this latest ruling, where California clearly defined marriage in its own Constitition, in accordance with that ruling, but was then struck down by a different federal judge who said that California can't define marriage on the basis of sex?
It seems to me that you can't have it both ways. Either the federal government takes precedence or the states are delegated power by the Constitution to define marriage as they see fit.
Somehow when the first judge weighed the Constitutionality of the DOMA provision, he didn't rule that it was discriminatory at all. Don't you think that if it was as obvious as Walker tries to make it, that the other judge would have included a similar argument in his ruling?
The fact that you can get two different federal judges to rule on very similar provisions at the state and federal level, and get two completely different rulings suggests to me that it's not as black and white as Walker suggested.
His "findings of fact" about the nature of marriage were a major overreach.
The Perry case is different in that Judge Walker did not rule that the federal government can tell the state of CA how to define family law, at least no more than the federal courts told the state of Kansas how to regulate its educational system in Brown v. Bd of Educ of Topeka, KS; or how they told the state of VA how to define marriage in the Loving v. VA case. What Judge Walker did rule, consistent with cases like Brown and Loving, is that while certain areas may be under traditional state power, all state actions are subject to constitutional limitations. A state may not exercise its powers in ways that violate the federal constitutional rights of the people.
http://www.scribd.com/doc/35374462/Prop-8-Ruling-FINAL
Yes, I thought that as well.
I have read the decision, and could read it many times. Many of the arguements for the ban are addressed in the decision. It was a thorough work by the judge, and it would be refreshing if those who oppose the decision would do the work and cite the section they disagree with and provide a coherent response.
As was seen in the transcripts of the trial, those who supported prop 8 ( tellingly not by the state itself who perhaps knew of the laws constitutional implications) devolved into a kind of legal idiocy with arguments that could not withstand even the minimum of scrutiny.
I even think you are right on the judge's ruling. We live in a Representative Republic where the Constitution prevents the democratic majority from taking inalienable rights away from a numeric minority.
Unfortunately, you undermine the very Constitution you cite to protect rights of the minority when you ignore the Constitution in passing Obamacare Health care... Either we are a nation of the "Rule of Law" or we descend into chaos of "Whim of Judges", "Might makes Right" and Mob Rule.
If it were not for the undisclosed agenda, i would not even give a flip about gay marriage. Yet despite being opposed, I find myself saying the Constitution requires this numerical minority's right to marry.
I don't like reaching this conclusion, but if we don't enforce the constitution here, We may find ourselves in or agreeing with a different unpopular numeric minority with no RULE OF LAW to protect us from the mob majority mentality.
Is it too much to ask the Constitutional Rule of Law be applied to #Obamacare and it be reversed it before we descend into the chaos of mob rule.
In closing, Let me help you out with your next headline; "Another Teapartyer makes the tired old Representative Republic Constitution Rule of Law Argument"
Those were my thoughts.
Don Mashak
http://twitter.com/dmashak
I assume you are talking about the mandate? How about my rights and being forced to pay to educate the children people choose to have. I don't have children so why should I pay? People don't choose to get sick or have an accident and guess what, I am sick of paying for emergency room visits for those that decide to risk it and go without insurance.
Besides, no one should die or go bankrupt because they get sick. You are morally wrong here sir.
Health care insurance as an employment based system, along with it being a for-profit business, was a mistake from day one and any changes to it will be painful but will be popular long-term. It is already happening.
Millions of people will fall through the cracks on this, and end up with government fines instead of health care. It would accomplish the exact opposite of its stated purpose.
The case was argued by 2 stellar legal advocates and the opinion beautifully written and intellectually analyzed consistent with prior legal decisions.
This was the best news I have heard in 2010. The constitution will not protect intolerance and hate!
But I thought the same thing about Citizens United so we will see what happens.