oh THAT'S what the judicial branch is for

(Image from the Wonkster blog at gothamgazette.com)

With the high turnover rate of the news cycle these days, Judge Vaughn Walker’s decision in Perry v. Schwarzenegger is almost old news at this point.  But as the hearing at the Ninth Circuit Court nears, I expect to see the arguments put forth against Walker’s decision to be re-visited.  In anticipation of that, I want to lay out my rebuttals.

“The same-sex marriage issue is a legislative rather than judicial issue.” – Paul Campos at the Daily Beast

Professor Campos teaches at the University of Colorado – Boulder, and argues that “[t]he invocation of vague constitutional language to decide controversial political issueds—that is, judicial activism—consists precisely in treating political questions as if they were questions answered by the Constitution.”  In his eyes, the issue of same-sex marriage is a political question that is not answered by the Constitution, and therefore shouldn’t be decided by the courts because it will come down to Justice Kennedy’s interpretation of the Constitution.  Why should Kennedy’s views count more than everyone else’s?

Take this argument to it’s natural conclusion, and you have to wonder why the courts are allowed to decide anything.  If it isn’t right for one person’s view to count more than everyone else’s, why is it right for nine people’s views to count more than everyone else’s?  Let’s just put everything up to a popular vote, and decide all issues that way, right?

James Madison would disagree: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”  Judge Walker is not saying that the majority of Californians have to accept same-sex marriage as natural; no judge can make someone change their values.  What he is saying, however, and what Justice Kennedy will be saying should the case reach the Supreme Court and should he cast the deciding vote in favor of overturning Prop. 8, is that the majority does not have the right to impose this value on the minority through legislative action.

“Where is the right to same-sex marriage in the constitution?” – Chris Wallace, Fox News

(I’ve linked above to the portion of Ted Olson’s appearance on Fox News that deals specifically with this issue, but the whole 14 1/2 minute video is worth watching.)

Ted Olson says it better than I can in the video linked above, but the gist of it is this: while the words “two people of the same sex are allowed to get married” are not in the Constitution, the Supreme Court has (fourteen times) found that marriage is a Constitutional right.  The Constitution doesn’t explicitly say that states are required to recognize interracial marriages, but the decision in Loving v. Virginia established that denying people that right based on race violated the 14th Amendment.  The Constitution doesn’t explicitly establish the right for prison inmates to marry, yet the Supreme Court decided in Turner v. Safley that a Missouri law requiring inmates to get approval from a warden before marrying violated the 14th Amendment.

So judicial history has established that the right to marry is a Constitutionally protected right, subject to the Equal Protection clause.  It is in this context that Judge Walker found that the state cannot deny this Constitutional right to same-sex couples without a more compelling reason than that put forth by the defenders of Prop 8.

“[T]he regulation of marriage is a state’s right. The courts have held this to be true time and time again. A federal judge has no power to legalize gay marriage just as they can’t set a uniform age for marriage.” – roguevalley, commenter at dailybeast.com

This argument comes from a discussion that I got into over at dailybeast.com in the comments section of the Campos article that I referred to above.  roguevalley argued that the Supreme Court’s finding in Commonwealth of Massachusetts v. Dept. of Health and Human Services established that the definition of marriage was a state right, and therefore Judge Walker (a federal judge) was overstepping his bounds by overturning Prop 8.

There is a significant difference here in what the two judges found.  Judge Tauro, the judge in the Massachusetts case, found that a provision of the Defense of Marriage Act was unconstitutional in that it infringed upon Massachusetts’ right to define marriage to include same-sex couples, and that it forced Massachusetts to discriminate among their citizens to obtain federal funding.

In contrast, Judge Walker’s decision addressed a much different issue.  Rather than looking at whether the federal government had to respect California’s definition of marriage, Judge Walker’s ruling addressed whether California had the right to define marriage in that way.

The difference here lies in the ability of states to give and take away the right of marriage.  Judge Tauro found that Massachusetts had a right to permit same-sex couples to marry, and that the federal government could not use to federal legislation to take away that right.  Judge Walker, on the other hand, found that Prop 8 violated the 14th Amendment, and in doing so, took the decision about defining marriage out of the hands of the state, according to the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Judge Tauro found that it was a state right to extend the right of marriage to more people and making it blind to sexual orientation, while Judge Walker found that the Constitution prohibits a state from taking that right away from a group based on sexual orientation.

As to the argument that states are allowed to define the minimum age for marriage, and thus should be able to define all other aspects of marriage, there is a significant difference between delaying eligibility for marriage and not allowing it at all.  It is in the state’s interest to ensure that parties are old enough to make responsible decisions before sanctioning their marriage.  Judge Walker found that the state did not have a similar legitimate interest in legislating that two consenting adults of the same sex could never get married.


The crazy thing about all of this is that, barring a major demographic shift in the population or change in opinions, this is a moot point.  Eventually, support for Prop 8 will die off. Literally. As the population changes, we will see more stories like this, and fewer like this.  At that point, how will Prop 8 supporters feel about being on the wrong side of history?

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