Another American judge weakens the Republic’s foundation

Summary:  Another popular referendum overturned by a judge.  This time insultingly so, dismissing the people’s judgement as irrational.   Perhaps he is correct and we deserve his contempt.  Certainly we’re weak, even supine. 

In his decision overturning California’s Proposition 8 Chief Justice Walker gave us a memorable opinion.  Every citizen should read it.  A Republic has entered its last days when its elites publically display contempt for the opinions of its people.   Judge Walker could have ruled that the Proposition violated the equal protection clause because he believes it does so.  That is in fact what he did.  Probably most of us (including me) would have nodded applauded and moved on.   But that was not enough.

Update:  Comments to this post suggest the need to clarify some basic facts.

  • The debate about the legal status of marriage involves interpretation of the Constitution, not simple enforcement.  Neither the Constitution or Federal law explicitly authorizes the government to issue marriage certificates to same sex couples.
  • Protection of minority rights AND self-government by means of elections are both foundational principles of our political regime.  They often conflict, as do freedom and equality.   Then judges strike a balance.  People making difficult decisions within a political system.  Not Priest-Kings or Pope’s explaining the will of God. 
  • The Constitution does not grant this power of judicial review.  It comes from a role the Supreme Court asserted in 1803 with the famous Marbury vs Madison ruling (Wikipedia).
  • However one describes it, discovering new rights under the living constitution is an inherently problematic activity.  Hence to be done with care.

Excerpts (red emphasis added)

Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

… The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. …


Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest. One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them. But marriage licenses in California are not a limited commodity, and the existence of 18,000 same-sex married couples in California shows that the state has the resources to allow both same-sex and opposite-sex couples to wed. …


Proponents next argue that Proposition 8 is related to state interests in:

  1. “[a]cting incrementally and with caution when considering a radical transformation to the fundamental nature of a bedrock social institution”;
  2. “[d]ecreasing the probability of weakening the institution of marriage”;
  3. “[d]ecreasing the probability of adverse consequences that could result from weakening the institution of marriage”; and
  4. “[d]ecreasing the probability of the potential adverse consequences of same-sex marriage.”

Plaintiffs presented evidence at trial sufficient to rebut any claim that marriage for same-sex couples amounts to a sweeping social change. …


Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples.

Not being an attorney, I don’t see that most of the opinion added anything to his conclusion, other than dressing it up.  Much of the evidence consists of experts stating their values as Truth, rebutting Christian conservatives stating their values were God-given Truth. 

One outstanding example of this malarkey:  Letitia Anne Peplau, professor of psychology at UCLA, was qualified as an expert on couple relationships within the field of psychology.

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

  • Peplau: Data from Massachusetts on the “annual rates for marriage and for divorce” for “the four years prior to same-sex marriage being legal and the four years after” show “that the rates of marriage and divorce are no different after [same-sex] marriage was permitted than they were before.”);
  • Peplau: Massachusetts data are “very consistent” with the argument that permitting same-sex couples to marry will not have an adverse effect on the institution of marriage.;
  • Peplau: Allowing same-sex couples to marry will have “no impact” on the stability of marriage. …

This is silly, for the following reasons:

  • A four year test would show the effect of distributing the Pill to girls at a Catholic junior high.  Four years shows little about the long-range effects of a change in society’s concept of marriage.
  • No social science, certainly not psychology or anthropology, have proven able to make such large-scale long-term forecasts about a society. 

Judge Walker may have struck another blow at the legitimacy of the Republic, as people see unelected judges overturn laws passed by elected representatives and propositions approved by the voters.  Elections constitute the fundamental foundation of the Republic, and should be ignored only for the most serious reasons, on the strongest evidence.  That large elements of the public do not share his values (and mine) does not IMO qualify as sufficient basis.

The sad part of this:  public opinion has been moving to support of gay marriage.  The past decade has seen great progress.  This ruling accelerated the inevitable, at serious cost.

Update:  has public support for the Supreme Court weakened?

The Legitimacy of the United States Supreme Court in a Polarized Polity“, James L. Gibson (Prof of Political Science, Washington U in St. Louis), 3 December 2006 — Few signs of decline between 1985 and 2005.

Posts about the Constitution and our government

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  7. Another step away from our Constitutional system, with applause, 19 September 2008
  8. What comes after the Constitution? Can we see the outlines of the “Mark 3″ version?, 10 November 2008
  9. Are Americans still willing to bear the burden of self-government?, 27 March 2009
  10. “Lights, Camera, Democracy” by Lewis Lapham, 24 May 2009
  11. “The Constitution that I interpret and apply is not living, but dead.” – Supreme Court Justice Scalia, 9 June 2009
  12. More about the tottering structure of the American political regime, 17 August 2009
  13. Listen to the crowds cheering Sarah Palin, hear the hammerblows of another nail in the Constitution’s coffin, 8 February 2010
  14. Another nail put in the Constitution’s coffin, but we don’t care, 9 February 2010
  15. Does the US government have the American people’s consent to govern?, 10 March 2010
  16. Recommended reading about the Constitution, 17 March 2010
  17. Is freedom the only value by which to judge governments?, 31 March 2010
  18. Is the US government illegitimate? If so, does that justify violent revolution?, 1 April 2010
  19. Another step towards fascism: “Silencing the Lawyers”, 31 May 2010
  20. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  21. The President’s big stick (domestic): his National Emergency Powers, 12 June 2010

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  • American Anthropological Association, Statement on Marriage and the Family: The viability of civilization or social order does not depend upon marriage as an exclusively heterosexual institution.
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