Wednesday, August 04, 2010

Marburying Marriage

Another federal judge plays God:

The federal judge who overturned Proposition 8 Wednesday said the ballot initiative that banned same-sex marriage was based on moral disapproval of gay marriage and ordered the state to stop enforcing the ban.

U.S. District Chief Judge Vaughn R. Walker, in a 136-page ruling, said California "has no interest in differentiating between same-sex and opposite-sex unions."

The decision is here (note: PDF) should you want to read it. Although I know it's damned near impossible to set aside the question of gay marriage generally, I'm more concerned about the following points:

  • As I've mentioned recently, it's a dangerous game when a single individual who has lifetime tenure and is essentially unaccountable to anyone, sets aside the express will of legislatures, or in this case a referendum of the people of a state. While this decision will work its way through the rest of the 9th Circuit and on to the Supreme Court, federal judges have far too much power over public policy. Gay marriage advocates might cheer the result, but there will come a time when an issue they hold dear is decided adversely.
  • There's also a very important question that needs to be settled -- does state law mean anything, or does federal law (or in this instance the interpretation of a single federal official wearing a judicial robe) trump all state law? This is more than a statute passed by a legislature -- this was an amendment to the California state constitution that was passed through the proper channels. One would think that a court would give great deference to any law that is passed in this manner. Apparently not.
  • We are in a period of governmental overreach and this judge's decision, which tosses aside the considered wisdom and expressed wishes of a large majority of Californians, is part of a very disturbing trend involving untrammeled government. There's going to be a backlash and it's not going to be a happy one.
  • Judge Walker clearly hasn't learned a damned thing from the 37-year aftermath of Roe v. Wade. One of the reasons that we have a larger culture war in this country is that we have had far too many decisions imposed via judicial fiat. There's a strong argument to be made that abortion would have eventually been legalized without Roe, in a slow but steady process in which the advocates of legal abortion won the hearts and minds of the general populace. In fact, this was the process we were seeing in several states regarding gay marriage, where gay marriage initiatives were passed by legislatures. Just as Harry Blackmun unleashed a terrible set of problems with Roe, Judge Walker has done the same.
One last thing -- as the clip from the Los Angeles Times notes, Judge Walker's ruling says that California "has no interest in differentiating between same-sex and opposite-sex unions." If that were true, there would have been no possibility for Proposition 8 to have passed. Yet it did pass. When we discuss California, we must mean the citizens of California, right? Based on the evidence that Prop. 8 passed, California must have had an interest in differentiating between same-sex and opposite-sex unions. If a federal judge can decide that the people of California don't know their own minds, we are at a point where the will of the people means nothing. That ought to concern everyone, regardless of their views on the question of gay marriage.

16 comments:

Gino said...

so, i guess its ok then to marry fathers and daughter, mothers to sons, sisters to brothers, because opposition has always been based upon moral objections...

next...
bring on the polygamists.

Anonymous said...

Excellent points, Mr. D. I'm a gay marriage supporter, but enough of a respecter of the capacities of my fellow citizens to try to win the debate by changing their minds. I guess my only quibble would be whether saying that people have not voted in their own interests means that you do not think they know their own minds. Surely, we can have objective interests that are independent of what we subjectively think our actual interests are. Though, again, I don't think this is a reason for judicial review but of trying to convince our fellow citizens of what their true interests are. In this case, I think having stable, happy gay relationships is in society's interest.

Gino, I don't think the judge's point is that moral objections to certain relationships can never be used to deny people the right to marry. The idea is that some moral (in the descriptive, not normative sense) reasons are not good reasons (eg. reasons for objecting to interracial relationships). Surely you think that incestuous relationships are morally objectionable for reasons that do not apply to gay relationships.

W.B. Picklesworth said...

This calls to mind Angelo Codevilla's article from a few weeks back.

http://spectator.org/archives/2010/07/16/americas-ruling-class-and-the/print

At what point does hyperbole intersect with simple description?

Anonymous said...

Mark,
for some reason, you forgot to make a snarky comment about this judge being appointed by Ronald Reagan.

Rich

Mr. D said...

Mark,
for some reason, you forgot to make a snarky comment about this judge being appointed by Ronald Reagan.

Rich


I wrote this without researching which president appointed him. Doesn't change the point, of course. And I thought I was being fair by decrying the Bush judge earlier in the week, but your mileage may vary.

BTW, we're going to be in Chicago next week (and staying in Oak Lawn, believe it or not). If you're available we'd love to see you.

Brad Carlson said...

The thing which irks me most about the gay marriage debate is the dimwits who accuse those of us who are anti-gay marriage as being "anti-gay." Like you cited, making law by judicial fiat is an incredibly dangerous precedent, which concerns me more than anything else.

This is a subject I broached last year.

Brad Carlson said...

BTW, someone via Twitter summed up today's ruling brilliantly:

Judge cites the cultural meaning of marriage to change the cultural meaning of marriage.

my name is Amanda said...
This comment has been removed by the author.
my name is Amanda said...

(Reposting because of stupid typo in the original comment.)

As you said, people like me think the news is great. Judges do occasionally make decisions that Dems (or Liberals) don't approve of - like the decision to qualify businesses as "people" so they can make campaign donations. As a supporter of same-sex marriage, honestly, I didn't want a judge to overrule a vote; I wanted Prop 8 to not pass!

So I see both sides of the issue you are discussing, and I agree that it's problematic.

Incidentally, Prop 8 was not supported by a "large" majority. The yes votes accounted for 52% of voters.

Also, it's relevant to consider that the expressed wishes of the majority are not always ethical. We've discussed that before, specifically in reference to segregation laws and opposition of the South to the '64 Civil Rights Act. (Which passed with votes, but I mean the South, regionally.)

FYI: (Until I couple days ago I never thought I'd be writing anything like there here, but - ) If there are any responses here to me, or about me, that are dedicated to what a *moronic idiot* I am - the purpose of which would be a pathetic pumping up one's own ego - they will be expressely ignored.

W.B. Picklesworth said...

Your comment doesn't slander anyone so I see no problem with it.

Anonymous said...

Judges usurp the will of the people once again. This may be ok for many because of the nature of the decision, but sooner or later a decision will be made that that these people support.

For the record, I'm ambivalent about gay marriage, as I suspect many are.

What I'm not ambivalent about is judicial overreach, and the fact that referendums, passed laws and other trappings of a constitutional democracy don't seem to matter anymore. All one has to do if they don't agree with a law is shop jurisdictions and find a sympathetic judge who has no problem playing god, and the problem is solved. This type of crap is tearing our country apart. Perhaps Shakespeare was right when he said, the first thing we should do is kill all the laywers.

Bike Bubba said...

http://kingdomboundbooks.com/documents/Prop-8-Schulman.pdf

Marriage is about controlling the impulses of sexuality that give rise to weaker vessels like children. Hence, no matter what the judge says, there can be no such thing as "homosexual marriage." It is a contradiction in terms.

And the well-being of those weaker vessels is no reason to preserve the real definition of marriage? Time to impeach and remove a judge for incompetence. We are not without recourse.

And regarding the "narrow" margin of victory of Proposition 8: the margin of victory was narrow after a brutal slander campaign by supporters of misdefining marriage, including a mis-definition of the proposition itself on the ballot. An honest vote with no slander campaign would not have been nearly as close, IMO.

Swiftee said...

My favorite Walker quote: "It mandates that men and women be treated differently based only on antiquated and discredited notions of gender.

All you silly people out there, clinging to your guns and biology textbooks. LOL!

But let not your hearts be troubled, thoughtful reader for this issue is following a script with a happy ending.

The decision will be upheld in the 9th CC, the sand is food crowd will declare victory over human biology, physiology and the last remnants of common sense; and then the SCOTUS will step in, turn the lights on and announce the party done and over. for. good.

Bike Bubba said...

Swiftee, the scary thing is that while I agree, I've got a hunch that whatever decision the SC comes to, it'll be 5-4. So much for the benefits and virtues of a Yale legal education making one able to think.

Swiftee said...

5-4 is as good as 100-0, BB.

We'll just get 'er done and go on to something less mind numbingly ignorant.

Since leftists have foisted the minuscule crew of mentally challenged dolts that is the sand is food crowd to the public's attention, the collective IQ of the country has taken a real beating.

my name is Amanda said...

WBP - Oh, *thank you so much*, WBP, Official Validator of My Comments!

I'm getting pretty tired of being accused by overly defensive people of "slander." Perhaps I should aquaint you with a rule for discussing theory, in the blogs or anywhere - "If it's not about you, IT'S NOT ABOUT YOU."

I have never said "WBP (or anyone) is a bigot for doing [fill in the blank.]" Not ever.