“He ignores the will of seven million Californians,” the head of the American Family Association screams.
The “him” and “he” is Judge Vaughn Walker of the U.S. district court in northern California. What upset the bigots was his recent declaration that the Proposition 8 law barring gay and lesbian marriages is unconstitutional.
The judge was right. His decision dealt a severe blow to bigotry.
The measure was put in the California Constitution by the people in referendum. But that is precisely why the country needs judicial review. It prevents tyranny of the majority, the majority of the people enacting laws detrimental to minorities.
As Chief Justice John Marshall put it in Marbury v. Madison (1803): “It is, emphatically, the province and duty of the judicial department to say what the law is.”
It is not the province of the people to say what the law is.
“Proposition 8 cannot withstand any level of scrutiny under the equal protection clause,” Judge Walker wrote. “ Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” (Equal protection is guaranteed by the 14th Amendment.)
Here’s more from Walker’s significant ruling:
• “The Constitution cannot control private biases but neither can it tolerate them.”
• “California’s obligation is to treat its citizens equally, not to mandate its own moral code.”
• “Moral disapproval alone is an improper basis on which to deny rights to gay men and women.”
• “Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
• “Fundamental rights may not be submitted to a vote.”
Walker denounced the negative stereotypes of gays and lesbians, praised their bonding and declared that children are not a necessary goal of marriage.
All of this from a judge that the New York Times calls conservative. Some conservative! Earlier, he had the audacity to urge the legalization of drugs. He was right about that too.
Gay marriage means much more than benefits and visitation rights. It is about love and happiness above all. It is impossible to see how a self-labeled Christian can oppose that.
Moreover, it is silly to talk about the sacredness of same-sex marriage when half the opposite-sex marriages end in divorce. All the talk about family stability and having children are mere masks for a deep aversion to homosexuality.
Judge Walker’s decision is a powerful argument for the ever-growing adherents of gay and lesbian marriage.
Six states aside from California allow same-sex marriage: Massachusetts, Maine, Vermont, New Hampshire, Connecticut and Iowa.
Argentina has just approved same-sex marriage, the first Latin American nation to do so. Give credit to Argentine President Kirchner for pushing the measure despite the violent opposition of the Catholic Church.
Two other Catholic countries, Spain and Portugal, permit same-sex marriage. So do Canada, Sweden, Norway, South Africa, Belgium and the Netherlands.
Unfortunately, Judge Walker’s ruling is not the last word on same-sex marriage. The case will be argued again in the 9th U.S. Circuit of Appeals in San Francisco.
Whichever way the circuit court rules, the case is almost certain to go to the Supreme Court. It alone decides the law of the land. The Walker view may be the law of the future but it is not yet the law.
Judging from previous reactionary decisions by the John Roberts Court, the Supreme Court’s ruling might be a 5-4 decision upholding Proposition 8.
The majority might be made up of Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito. The dissenters might be Justices Ginsburg, Breyer, Sotomayor and Kagan.
The unknown in the equation is the swing voter, Justice Kennedy. If he joins the liberal bloc, it could be a 5-4 decision to uphold Judge Walker’s position.
There is precedent in the 1930s for such a switch. The Supreme Court was systematically repealing the New Deal. A rightly angered President Franklin D. Roosevelt proposed expanding the court from nine to 15 if justices did not retire at 70.
But suddenly Justice Owen Roberts, who had been voting to repeal the New Deal, switched to the liberal bloc. The New Deal was saved.
This prompted the quip: “the switch in time saves nine.”
Today the Supreme Court needs a “switch in time” to help restore some validity to the claim engraved on the façade of the Supreme Court building in Washington: “equal justice under law.”
Jake Highton teaches journalism at the University of Nevada, Reno. Contact him at firstname.lastname@example.org.