I’m responding to my fellow classmate’s blog posting, “Proposition L8er!” in which he comments on the California Proposition 8 issue, and a subsequent recent ruling by a federal judge to overturn the law ruling that it is unconstitutional. Proposition 8 was on the November of 2008 a legislative initiative to ban same-sex marriages in California. Over 7 million citizens voted and passed the measure with a significant majority.
Last Wednesday, U.S. District Judge Vaugh Walker, one of three openly gay federal judges in the country, overturned the California ban on same-sex marriage, ruling that Proposition 8 was unconstitutional. The ruling gave opponents of the controversial Proposition 8 ballot a major victory, and opened the doors for gay marriages to resume in California.
The thrust of his commentary is in support of the federal judge’s decision and he presents a variety of supporting arguments for his position, including the civil rights movement of the 1960’s and his personal opinion that homosexuality is not a choice, and that everyone should enjoy equal protection under the law. He compares the issue of same-sex marriage to the civil rights movements of blacks, women, and Mexican-Americans, and suggests that a ban on gay marriage is in his words, “an imposition of church on state and would be against the collective pursuit of American interests.”
Given that this involves subjective viewpoints, I don’t find fault with his assertions, nor his position on the issue. As he approaches this subject from the standpoint of fair and equal treatment, his comparison to other civil rights movements lend credibility to his argument. He drafts his article in such a way that it focuses on the moral aspect of whether same-sex couples deserve the same rights as other American citizens and places the issue under the context of equal protection under the law. He is not attempting to be objective about whether same-sex couples should be allowed to be married, and as such applauds the ruling to overturn Prop 8 despite any potential legal arguments that the judge may have overstepped his bounds. In the end, his argument is valid, as his article serves to promote his opinions on those moral grounds, and he does a very good job of substantiating his position.
He chose not to present the opposing viewpoints on this issue, or use those arguments to further solidify his position, and that is fine. Editorial commentary does not require unbiased reporting. However, in my response , I’d like to delve into some of these opposing arguments and then bring those into contrast with Ashty’s statements.
Opponents to this ruling invariably cite judicial activism as their primary objection, and at first glance, I admit that I was in agreement with them. I am concerned about activist judges implementing their own ideals into law while ignoring the voting rights of citizens. Why do we even vote for initiatives if some slick lawyers will just go from judge to judge, court to court, until they find one to overturn it? It doesn’t seem that our votes matter in lieu of the big money legal maneuvering that trump our wishes. In any event, proponents of same-sex marriage herald Walker’s ruling as a victory as it serves their interests, and they don’t seem to care if it violates the will of the people. Over 7 million citizens cast votes in a legal election for a proposition only to have a judge throw out their votes. To many, that is in itself, unconstitutional, and smells of improper use of the judiciary. Now, as for Prop 8 being unconstitutional, that ascertion is suspect, as the law went through proper channels and a constitutionality test prior to being placed on the ballot. It seems like any judge can offer a different opinion on the constitutionality of any issue, regardless if other bodies have already determined it to be valid. So in the end, it’s judicial “opinion” and the underlying agendas of that particular judge that determine whether something is constitutional.
Many experts feel that the judge’s ruling is simply not sound legal deduction, in that he cited in his ruling that Prop 8 held “no rational basis in singling out gay men and lesbians for denial of a marriage license.” Really? No rational basis? None? What about the fact that a majority of the people have expressed their wishes for this not to be legal? The proposition was voted upon by the citizens of that state, and I see nothing in the constitution that allows judges to throw out legally cast ballots. Furthermore, our nation has no historical foundation for allowing or accepting same-sex marriages, and as such it holds no precedent in our society as being an accepted practice. It flies in the face of traditional cultural norms. Finally, the fact that the judge is openly gay and that he has expressed that the ruling would personally benefit him financially as it would provide additional fiscal advantages to him and his partner, there are reasonable grounds that he should have recused himself from the case. How can an obviously biased judge rule objectively?
Judge Walker ruled that Proposition 8 violated the Equal Protection Clause of the 14th Amendment, which guarantees “equal protection of the laws” to everyone. This precedent states that any law that” puts a group of people into a different class will be viewed with a certain amount of scrutiny”, although the amount of that scrutiny depends on numerous contributing factors. In his ruling, Walker stated that Prop 8 “under this calculus, deserved the strictest scrutiny.” However, many experts disagree. Chapman University Law Professor Ronald Rotunda, responded, “Judge Walker was acting on his own here — he didn’t have a lot of guidance from the U.S. Supreme Court. The Supreme Court has not been unsympathetic to gay rights,” he said, “but it hasn’t ever told us what the test is. So reasonable judges can go either way.” Added Rotunda: “If this case gets to the Supreme Court, the justices will finally tell us.” So what we have here is a federal judge, one who is biased, acting to overturn the will of the voters to suggest a standard of unconstitutionality that does not yet exist, with the strategy to entice the higher courts to finally articulate that standard, and in the process push through a legislative precedent that he personally supports. Of course, I’m basing my theory on my assumption that the
9th “circus” court of appeals – the monkey court of all liberal courts – won’t overturn Judge Walker’s ruling. I used to live in the bay area prior to relocating to Austin and I’m not holding my breath that the 9th circuit court will do much more than help this along.
Okay, that is the brunt of the opposing viewpoint on this issue, give or take, and again, I am supportive of most of those points. One judge silencing 7 million voting citizens is not something I’d like to see in America, and it’s obvious that supporters of Judge Walker’s decision care only that their side wins and not whether judicial activism overtakes the will of the people. This is America and we only seem to care about winning – not how we go about winning. Now all that said, I need to come back full circle to Ashty’s commentary and his point about equal protection. Because after much personal deliberation, and even considering that I’m against biased activist judges, I have realized that I’m still entrenched in my opinion that we should adhere to the system our forefather’s put in place. Allow me expound.
Although many may disagree about whether Walker's ruling made the case that Proposition 8 was unconstitutional, I don’t think there is any doubt about the authority of the federal judiciary to determine the constitutionality of the law. This is exactly how our constitutional democracy is supposed to work. I can’t blame Judge Walker for doing his job, as judicial review has been the foundation for our system of checks-and-balances since the landmark Marbury vs. Madison ruling in 1803. Regardless of whether congress, state legislatures, or voters pass a law, it has to comply with constitutional standards. With regards to Walker’s open statements of homosexuality, I don’t want to start going down that slippery slope. Membership to a particular group does not immediately disqualify someone from being unbiased. African-American judges preside over trials of other African-Americans, why shouldn’t gay judges be able to rule on laws that address gay issues? If we start setting those recusal standards, I’m fearful where that will lead us. As for the complaint of activist judges forcing social change when it is against the will of the people, well remember that it was the courts that desegregated the schools and ended bans on interracial marriage, not to mention numerous other equal rights issues. So this is nothing new, and in our system of government, no ballot measure or law should be out of the reach of the judiciary.
In closing, I find myself agreeing with assertions of Ashty’s blog commentary, albeit for different reasons. I’m standing on principle for what is the right thing to preserve liberty within the framework of our democracy and not merely what I want to happen. Others on the conservative right are not so keen to agree. Rush Limbaugh recently spouted, “This is tyranny," suggesting the judiciary had been overtaken by "leftist nut jobs." I’m not so sure I want to subscribe to that type of fear-based tyranny. I’m more personally concerned about protecting equal rights from the "tyranny of the majority" that James Madison warned of in the Federalist Papers.
In the end, I trust the courts to pass judgment on this issue, not because I support the measure, or because I think the courts are infallible or unbiased; but because this system of reasonable and due process to oversee what is fundamentally constitutional is the best and only governing system that can preserve liberty in the long run. In the end, I would rather preserve equality as a standard, despite all other considerations, than to get my way on any individual issue and lose touch with that basic principal of personal liberty.
