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Perry: A Case of Simple Justice

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"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.