Patterico's Pontifications

8/8/2010

Schwarzenegger: I Lost the Gay Marriage Case. Now Go Implement the Winners’ Position as Quickly as Possible

Filed under: General — Patterico @ 11:02 am

It’s a wonderful illustration of one of the problems of deciding culture war issues by litigation:

California Gov. Arnold Schwarzenegger, who twice vetoed legislation that would have legalized same-sex marriage, has surprised gay rights supporters by urging a federal judge to allow gay couples to resume marrying in the state without further delay.

Lawyers for Schwarzenegger, Attorney General Jerry Brown, two gay couples and the city of San Francisco all filed legal motions Friday asking Chief U.S. District Court Judge Vaughn Walker to implement his ruling striking California’s voter-approved same-sex marriage ban as unconstitutional.

. . . .

The governor and attorney general almost always defend state laws when they are challenged, regardless of their personal views. But in this case, both Schwarzenegger and Brown refused to participate in fighting the lawsuit aimed at overturning the ban, even though they both were named as defendants.

This simply underlines the problems inherent in a process that allows judicial decisions to reverse the will of the people regarding controversial social issues.

Proposition 8 was fully debated by the citizenry of the most populous state in the union. Seven million voters approved Proposition 8 in their collective wisdom. I happen to disagree with them, but I would never propose that my single vote should cancel those of seven million of my fellow citizens.

Some argue that this is exactly what is supposed to happen in our constitutional system. A law must withstand the test of constitutional scrutiny, which means taking it to court. Which means the single vote of a judge can and should negate the law if it is unconstitutional.

And that is undoubtedly true. It makes sense when a judge is deciding, for example, whether a particular piece of legislation runs afoul of our First Amendment jurisprudence. But in our equal protection jurisprudence, the issue often comes down to whether a law has a rational basis. And a judicial inquiry ought to tread very lightly when the nature of the inquiry is whether a law is rational.

Instead, Judge Walker trampled all over the issue with elephant feet, willy-nilly issuing pronunciamientos regarding the proper role of tradition in deciding the legality of gay marriage, and couching these edicts as “factual findings.”

This sort of inquiry is far more suited to decision through the collective wisdom of millions of voters, debating a topic in public — rather than in a courtroom, litigated by two sets of parties who (as Schwarzenegger’s pronouncement highlights) may actually agree with each other.

What if Schwarzenegger and Brown, rather than deciding to abstain from participation in the litigation, had decided instead to conduct it — with an eye toward losing? If this sounds far-fetched, recall if you will how a cabal of left-leaning California officials decided not to appeal an unfavorable ruling on Proposition 187 to the U.S. Supreme Court.

But the prospect of sabotage by sloppy or disinterested litigation is not the only reason that deciding such issues in the courtroom is a bad idea.

Judge Walker’s ruling was simply the negation of our vote, on a matter that should properly be decided by the People and not by an unelected judge (and no, it does not help that this particular unelected judge could benefit directly from his own ruling). I will have more to say about this in a future essay, but the concept of the negation of a vote is one I want you to remember.

A courtroom is not the place to resolve the question of whether society ought to accept gay marriage. A courtroom is not the place to decide whether thousands of years of tradition are to be given any weight in assessing whether a law abrogating that tradition is rational. I keep hearing that the proponents of Proposition 8 simply didn’t make their case in court. They should not have had to.

A courtroom is not the place to resolve contentious issues in the culture wars. It is time we recognized that.

61 Responses to “Schwarzenegger: I Lost the Gay Marriage Case. Now Go Implement the Winners’ Position as Quickly as Possible”

  1. “A courtroom is not the place to resolve contentious issues in the culture wars. It is time we recognized that.”

    The fact that the left wing has been forcing change on our society for decades using the liberal court instead of the ballot box is proof that they know they cannot sway the voters with reasoned debate.

    tyree (351fe2)

  2. majority rule isn’t always just I don’t think and legislators are whores

    we need judicial review of stuff sometimes this guy just did it wrong is all

    happyfeet (19c1da)

  3. Majority rule isn’t perfect, but neither is ruler ship by the judicial elite. When the issue is one of culture, and not criminal nature, it would be better if the people, not the liberal judges, decided things. It would be nice if our vote was counted, at least. Disfranchisement takes many forms, and the liberals only oppose a few of those.

    tyree (351fe2)

  4. Lame-duck populist. Add it to his resume.

    Icy Texan (d9d345)

  5. we need judicial review of stuff sometimes this guy just did it wrong is all

    I agree. My point is nuanced but (I think) meaningful: when that judicial review consists of an inquiry into the rationality of a law, judges should almost never overturn them on that basis — and at the very least should give careful consideration to all possible arguments in favor of the law.

    Patterico (c218bd)

  6. I agree.

    happyfeet (19c1da)

  7. I agree with you, Patterico, on the empty victory a judicial decision is here. Did Roe v. Wade change anyone’s mind on abortion? If anything, the public is more opposed to abortion than ever, as even pro-choicers admit 95% of abortions are for convenience.

    OTOH, forced desegregation worked to desensitize people to Black people. Maybe that was needed after Jim Crow laws.

    I do truly wonder which would be applicable here.

    Patricia (358f54)

  8. “majority rule isn’t always just I don’t think and legislators are whores”

    Agreed, but 0-31 on the ballot ain’t chopped liver.

    daleyrocks (940075)

  9. Well, i think you make a lot of good points, but i think if i was a supporter of prop 8, i wouldn’t want edmund “jerry” brown’s “help” in this case if he offered it.

    Aaron Worthing (A.W.) (f97997)

  10. “reasoned debate” is an oxymoron when used by a Democrat, much like bipartisanship really means “do what I want”

    Peterk (9ded71)

  11. “Well, i think you make a lot of good points, but i think if i was a supporter of prop 8, i wouldn’t want edmund “jerry” brown’s “help” in this case if he offered it.”

    W.W. – Kind of like how Gov. Brewer nixed her A.G.’s involvement in defending SB 1070.

    daleyrocks (940075)

  12. The judge was bound by Baker v. Nelson.

    OTOH, forced desegregation worked to desensitize people to Black people. Maybe that was needed after Jim Crow laws.

    There is no policy physically separating homosexuals from heterosexuals.

    we need judicial review of stuff sometimes this guy just did it wrong is all

    True.

    Whether or not a law is bad has no bearing on whether or not a law is unconstitutional. And let me describe a hypothetical case.

    Suppose the California Constitution were amended to add a section to Article 1 reading, “No person shall be subject to prosecution in a juvenile or criminal court for consensual sexual conduct with a male under 18 years of age. Neither this section, nor any other section of this constitution, shall not be construed as to forbid the Legislature for enacting laws that punish consensual sexual conduct with females under 18 years of age.” This would effectively mean that statutory rape laws only apply if the victim is female.

    Such an amendment that introduces invidious gender classifications in criminal statutes, is wrong. It violates civilized notions of justice and fairness, and runs counter the the principles of equal protection that this nation adopted.

    I would oppose this amendment; I would not vote for it, and I would sign a petition for an initiative amendment repealing this patently unjust law.

    Now, consider a 15-year-old boy hauled into juvenile court for having consensual sex with his 15-year-old girlfriend. Because of the above amendment, the girl is immune from prosecution. The boy’s lawyer argues a 14th Amendment equal protection violation, and the judge agrees, dismissing the case.

    Would such a ruling, striking down a base and unjust law, be correct?

    No.

    For the United States Supreme Court had already ruled on this issue in Michael M. v. Superior Court of Sonoma County, upholding a statutory rape law that effectively prohibited underage boys from having sex with underage girls, but not underage girls for having consensual sex with underage boys. Michael M. controls in the above case. And under De Quijas v. Shearson

    We do not suggest that the Court of Appeals, on its own authority, should have taken the step of renouncing Wilko. If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

    Therefore, a lower court judge declaring such a law as unconstitutional is bare judicial activism, as was declaring Proposition 8 unconstitutional.

    Michael Ejercito (249c90)

  13. A few points:

    One of the reasons initiatives are so likely to be struck down by the courts is the fact that the persons obligated under the law to defend the law in court (eg: the Attorney General’s office or, failing that, the Governor) are often inherently opposed to the law they are supposed to defend. Jerry Brown didn’t even bother to defend Prop 8 in Court and the Governor’s defense was extremely perfunctory; the supporters would have almost done better with the proverbial Texas death penalty PD who falls asleep during the Trial. In cases where a law is subject to legal challenge, the state constitution should be revised to give the sponsors of the initative the option of heading the defense, if they choose to do so.

    Second, Judge Walker’s ruling, seeing as it was based on “findings of fact” might insulate it from being overturned on appeal. HOWEVER, if it us upheld on appeal on factual, rather than legal, grounds, it is of no precedential value and cannot be used to overturn statutes or constitutional amendments in other states — or even another constitutional amendment in California.

    Sean P (4fde41)

  14. Second, Judge Walker’s ruling, seeing as it was based on “findings of fact” might insulate it from being overturned on appeal.

    How would findings of fact prevent overturning the case?

    The Ninth Circuit or Supreme Court could rule that Baker v. Nelson already decided the legal issue, and the factual record does not change the law.

    And the factual record does not have to be considered, either in part or in whole. Appeals courts have ruled on the admissibility and relevance of facts. Here is one factual finding.

    Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

    I fail to see how that relates to the issue of whether or not the original public understanding of the 14th Amendment compels overturning Proposition 8. And judges may feel free to ignore that fact, or other facts.

    And the Supreme Court, of course, has appellate review over law and fact.

    Michael Ejercito (249c90)

  15. Neither Arnold, nor Jerry, want to be seen anywhere near this issue.
    Arnold kicked the can repeatedly when he vetoed legislation on this issue, saying it was something to be decided by the voters.
    Jerry knows that he will lose whatever little support he has from the center-right, church-going groups on this
    (particularly in the Black community – and possibly in the Hispanic).
    They want this out of their lives now –
    especially The Moonbeam Who Would Again Be Governor!

    AD - RtR/OS! (89e55e)

  16. This case is the latest poisonous fruit of the seed planted in Brown v Board of Education. The result in Brown was good; but it set the destructive precedent of pursuing social and legal reform through judicial action, rather than political action.

    Though I would that still say that Brown was a proper subject for judicial action; the challenged practice was arguably in violation of explicit language in the Constitution, which was specifically intended to apply to such practices.

    That cannot be said of Griswold v Connecticut, the next step down that path. I would say Connecticut’s prohibition of sale of contraceptives was wrong policy. The opponents of the ban should have persuaded the legislature to repeal it. If the legislature refused, they should have persuaded the voters to elect different legislators. That’s how representative democracy is supposed to work.

    Instead they used SCotUS as a shortcut, with a nudge and a wink to the Constitution. The Constitution does not bar laws that are wrong. But over the last 50 years, the “Ruling Party” has regularly used court action to impose policy changes they consider desirable rather than do the heavy work of persuading voters and legislators. Legislators often welcome such tricks, as it relieves them of politically awkward responsibilities.

    In some cases, this has amounted to collusion between judges and the executive to override the popular will. The refusal of AG Brown to defend Prop 8, and the eagerness of Governor Schwarzenegger to implement Walker’s decision area an example of this.

    It is also an example of the continual overreaching of the “Ruling Party”. If it does not stop, it will lead to either a rebellion (perhaps even an armed rebellion) by the “Country Party”, or the de facto replacement of democracy by a crony oligarchy like the EU.

    Rich Rostrom (f7aeae)

  17. Since the State threw the case intentionally, when does AG Brown get disbarred?

    Jeff S. (b15751)

  18. This case is the latest poisonous fruit of the seed planted in Brown v Board of Education. The result in Brown was good; but it set the destructive precedent of pursuing social and legal reform through judicial action, rather than political action.

    The destructive precedent came about the way Brown was ruled.

    They did not overrule Plessy v. Ferguson on the grounds that Plessy can not be reasonably reconciled with the original public understanding of the 14th Amendment. They ruled that the segregation was impermissible because the schools were not equal.

    It is understandable why the appellants in Brown chose to argue that the segregation in question did not meet the “separate but equal” test. They could not be sure that the justices would take the step to overturn Plessy.

    Still, that was what they should have done.

    Michael Ejercito (249c90)

  19. “The Ninth Circuit or Supreme Court could rule that Baker v. Nelson already decided the legal issue, and the factual record does not change the law.”

    They COULD, but Walker’s opinion was specifically drafted to give an ideologically sympathetic judge an out, if they are so inclined.

    Sean P (4fde41)

  20. majority rule isn’t always just

    It’s merely more just than any other type of rule which anyone has come up with.

    Subotai (b38f57)

  21. Governor Schwarzenegger’s position on this has never made a great deal of sense: first he said it was up to the voters or the courts (rather than the legislature); then he opposed Prop 8, but very very quietly without campaigning; then he refused to defend it in the courts.

    It’s been an amazingly … inconsistent … performance.

    aphrael (73ebe9)

  22. Schwarzenegger is squishier than a bowl of Jell-o. I’m sure the influence of wife Maria and Hollywood (and all its ingrained liberalism and reported bisexuality) has some role in that.

    Then, too, the state he presides over is super blue.

    Mark (411533)

  23. I invite those who think majority rule is just to contemplate a jury in their criminal trial of twelve that votes in a majority using secret ballots, rather than deliberation and unanimity.

    The practice of using a state’s power (whether by the legislature, the executive, the courts, or the power of the mob) to impose culture is doomed to fail; the rationalizations can be fun to talk about, but they don’t matter in the long run.

    htom (412a17)

  24. htom – How is majority rule any worse than passing along the role of legislation to the Judiciary? Or allowing a tiny fraction of the population to determine policy?

    JD (3dc31c)

  25. At the risk of repeating myself, again, yet another time …

    Majority Rule is 4 Wolves and 3 Lambs deciding what to have for lunch …

    No-one should be surprised when, after 3 votes, Majority Rule is 4 Wolves deciding what to have for lunch …

    (Prior expressions of the concept put Democracy where Majority Rule is, in the above) …

    Alasdair (205079)

  26. At the risk of repeating myself, again, yet another time …

    Majority Rule is 4 Wolves and 3 Lambs deciding what to have for lunch …

    No-one should be surprised when, after 3 votes, Majority Rule is 4 Wolves deciding what to have for lunch …

    (Prior expressions of the concept put Democracy where Majority Rule is, in the above) …

    Yes, that rule by judicial decree is having one bear decide how to divide the sheep.

    The practice of using a state’s power (whether by the legislature, the executive, the courts, or the power of the mob) to impose culture is doomed to fail; the rationalizations can be fun to talk about, but they don’t matter in the long run.

    In a sense, the state can not decide social meaning.

    Michael Ejercito (249c90)

  27. Patterico, I think you and I are on exactly the same page here. I actually am terribly disappointed by Judge Walker’s ruling even though if I were a state legislator, I’d vote to permit same-sex marriage, or if I were a governor I’d sign a bill enacted to that same effect.

    (As a policy matter, I support same-sex marriage; but also as policy matters, I’d make it quite a bit harder to get married, a whole lot harder to get divorced, and more rewarding (via tax credits) to raise children over a sustained period in a two-married-parents home. Those views are exceptions to my generally libertarian outlook, in which I generally want the state and federal governments to stay out of private life decisions and affairs, and they’re keyed directly to the state’s interest in protecting children and promoting child-rearing. I would hate to see any of these policies imposed, though, by activist judges. And I genuinely do respect, and hope I always show genuine respect, to those with more traditional policy views; I don’t think they’re irrational, but just that on balance, they’re probably wrong.)

    Judge Walker’s ruling may be great in the short term for those same-sex Californians wanting to be married there who’re unwilling or unable to travel to a state whose legislature and voting public have decided to permit same-sex marriage. But I regretfully predict that it will turn out to be very bad for proponents of same-sex marriage at least throughout a long-lasting middle term. Tolerance and understanding will only grow with education and experience and, yes, civil debate in the public forum (including through legislators and executives). If unelected judges acting as philosopher-kings try to cram it down the throats of those inclined to resist it, the result will only be to inflame the resisters, to prolong the argument, and to continue the de-legitimization of same-sex relationships from the perspective of large segments of the public.

    To borrow from Vietnam-era military-speak: Olsen, Boies, and Judge Walker have set about destroying the village in order to save it. From the perspective of supporters of SSM, this is a terrible case — indeed, almost the worst imaginable case — to use as a vehicle for advancing their legal position before the present Supreme Court.

    SCOTUS pundits are busy speculating how Mr. Justice Kennedy will swing the Court on this case in due course. I don’t think he’s goofy enough to fall for the “fact-finding” charade — although as a piece of legal flim-flam, Olsen & Boies orchestrated quite a circus. Justice Kennedy might instead be persuaded to affirm on substantive due process grounds, expanding Lawrence v. Texas — but there really ain’t no such thing as substantive due process, and that’s just a misleading label for “imposing my will as a philosopher-king just because I can.” I don’t think he’s likely to overrule prior SCOTUS precedent and turn sexual orientation into a protected class requiring strict scrutiny (even though the four liberal Justices would almost certainly be delighted to rewrite the law to make both gender and sexual preference into “suspect classes”). Justice Kennedy might also buy into Judge Walker’s colossally disingenuous “no rational purpose could conceivably be served/this is all irrational and hateful bias” analysis, in which “rational” means “everything I (the judge) agree with” and “irrational” means “everything I (the judge) don’t agree with.”

    But for purposes of getting that fifth SCOTUS vote, presumably from Kennedy, this is a particularly bad case precisely because it is so emphatically and obviously un-democratic. I think Kennedy felt considerable empathy for gays facing jail time for having sex — so much empathy that it led him to ignore prior precedent and buy into Lawrence‘s substantive due process bunk. Here, does his empathy lead him to side with California gays who are dissatisfied with state-approved near-equivalent domestic partnership rights? With them over seven thousand voters who’ve been told that their views and their votes don’t count?

    I think there is a substantial possibility, maybe a probability — and thus a very serious risk, from the viewpoint of SSM supporters — that the result will instead by a 5/4 decision SCOTUS against judicial imposition of same-sex marriage. And that will be the middle-term disaster.

    Such a ruling would, however, at least get this controversy out of the federal courts for the most part. Activist state-court judges might still interpret their state constitutions to require SSM even in states where the legislatures and executives haven’t permitted it, or have even purported to forbid it.

    Beldar (e92181)

  28. Whoops — obviously, I meant “seven million voters,” not seven thousand. Sorry for the magnitudinal error.

    Beldar (e92181)

  29. htom – How is majority rule any worse than passing along the role of legislation to the Judiciary? Or allowing a tiny fraction of the population to determine policy?

    — JD

    Majority rule for creating Constitutional establishments is bad because the majority may change tomorrow. Constitutional decrees are (among other things) supposedly to protect the minority from the power of the majority. Hence the usual scheme for Constitutional amendment, requiring a 2/3 majority of those eligible to vote, rather than the California simple majority of those voting on the question of the initiative. (My own feeling is that such amendments should require both that over 2/3 of those eligible to vote for the issue actually vote on the issue AND that over 11/12 of those actually voting be in favor; yes, this makes such almost impossible to do (example 2/3 of 36 possible voters –> 24 voters, 11/12 of 24 –> 22; 61%, lower than I’d like.)

    Judicial legislation is bad because the Judiciary is supposedly an unbiased interpreter of the laws; they have a conflict of interest if they are also creating the laws.

    If I have to choose between these two (my preference is to reject both such popular amendments (especially the Californian mob rule) and judicial legislation) I’d choose judicial legislation as the lessor evil. But I would not like it.

    htom (412a17)

  30. htom – Don’t get me wrong, I think both are lousy ways, but entrusting that power to a Judge to dictate to the people seems like a recipe for bad things. Mob rule is no better, but this particular scenario has been instigated by Mayors and Judges ignoring the law or rewriting the laws.

    JD (3dc31c)

  31. There is no policy physically separating homosexuals from heterosexuals.

    No, but informally I think this still exists. Would the gay guy in your office bring a date to the office party without asking first?

    Patricia (358f54)

  32. If majority rule is 4 wolves and 3 sheep deciding what to have for lunch, then judicial rule is one wolf and 7 million sheep deciding what to have for lunch.

    There is nothing fair about disenfranchisement, but the left uses is all of the time to force their agenda on the majority.

    tyree (351fe2)

  33. It seems to me that it ought to be easier to remove people from office when they contradict the will of the people, rather than waiting a number of years for the next election. If the majority of the people in a state want law “X”, it should be the required responsibility for the state to mount as vigorous defense as possible before the feds. To not do so should be perceived the same as when a lawyer does not represent a criminal defendent to the best of their abilities because they don’t like the defendent, IMHO.

    Comment by Patricia
    By my experience in Philly, I don’t think anybody would ask first, and they would treat you with disdain if you even blinked at it.

    MD in Philly (5a98ff)

  34. htom said, “The California Mob Rule…”
    Nice, tolerant description of your fellow citizens.

    tyree (351fe2)

  35. Majority rule for creating Constitutional establishments is bad because the majority may change tomorrow.

    Then you must be opposed to the US Constitution, which itself is a “Constitutional establishment” created by the majority.

    Constitutional decrees are (among other things) supposedly to protect the minority from the power of the majority.

    You will not find that definition of “Constitutional decrees” anywhere in either the Constitution itself or in the writings of the Founders.

    Hence the usual scheme for Constitutional amendment, requiring a 2/3 majority of those eligible to vote

    Constitutional amendment does not require two thirds of those eligible to vote. It requires the support of three quarters of the states. In many cases these three quarters of the states can represent much less than 2/3 of those eligible to vote.

    The amendment process requires a supermajority of the states. It is indifferent to the number of voters in any individual state. Wyoming, Rhode Island and Alaska carry more weight than do California and New York.

    Whatever the other merits of this anti-majoritarian outlook of yours, it was not what the Founders envisaged.

    Subotai (acf3e5)

  36. Majority Rule is 4 Wolves and 3 Lambs deciding what to have for lunch …

    So you regard all SCOTUS rulings as invalid? After all, they use “Majority Rule” in making their decisions.

    Subotai (acf3e5)

  37. I invite those who think majority rule is just to contemplate a jury in their criminal trial of twelve that votes in a majority using secret ballots, rather than deliberation and unanimity.

    I invite those who think that majority rule is unjust to exit this country on the double. We fought a war of independence over exactly this issue. The faction which approved of majority rule won.

    Subotai (acf3e5)

  38. JD — I think the odds of finding a good judge are better than finding a good mob.

    tyree — not a Californian, and you need to look at the requirements.

    Subotai — the US Constitution was established by a lengthy process, including a unanimous acceptance by the states of the Confederation that preceeded it, and by acceptance by all of the original 13 colonies (although only 9 of the 13 were required to bind those accepting it (7 being a simple majority.)) Voting on amendments requires 3/4 of those eligible to vote — only States vote (there is an alternative mechanism that has never been used.)

    Yes, I’m anti-majoritian. I think that the majority is usually wrong.

    htom (412a17)

  39. voting on amendments requires 3/4 of those eligible to vote

    No, you missed a word, it requires 3/4 of those states eligible to vote. It does not require 3/4 or even a simple majority of those voters eligible to vote. In other words, the process does not require supermajority support from the American voters.

    Yes, I’m anti-majoritian.

    Then you are anti-American.

    “The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism.” Thomas Jefferson.

    Let me repeat that for you. to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.

    Subotai (acf3e5)

  40. the US Constitution was established by a lengthy process, including a unanimous acceptance by the states of the Confederation that preceeded it, and by acceptance by all of the original 13 colonies (although only 9 of the 13 were required to bind those accepting it (7 being a simple majority.))

    As a principled anti-majoritarianist, you must find that process repulsive.

    Subotai (acf3e5)

  41. Let me repeat that for you. to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.

    Comment by Subotai — 8/9/2010 @ 7:22 am

    I’m sure you understand the need for some protections against simple pure democracy, right? It’s something we all should understand, since one segment of our population is currently voting for wealth transfer to themselves from the minority few top percent earners (And even the future earners).

    That is the majoritarian problem. And no, you’re not anti-American for recognizing this is one of the main protections of the US Constitution, or at least was intended to be.

    There is a tension between this problem and the idea of democracy. It’s not a black/white issue.

    Dustin (b54cdc)

  42. I’m sure you understand the need for some protections against simple pure democracy, right?

    I’m telling you what the Founders believed. You have an argument, direct it at them.

    since one segment of our population is currently voting for wealth transfer to themselves from the minority few top percent earners

    I really wish that were true, but the reality is that your poor oppressed “minority few top percent earners” are looting the treasury. The entire bank bailout fiasco was a massive transfer of wealth from the taxpayers in general to the very wealthy. People in the financial sector got million dollar bonuses for screwing up, and they got them direct from Uncle Sam.

    Hey, I want to be oppressed like that!

    Subotai (acf3e5)

  43. you’re not anti-American for recognizing this is one of the main protections of the US Constitution, or at least was intended to be.

    Let’s ask James Madison to weigh in, shall we?

    The will of the nation being omnipotent for right, is so for wrong also; and the will of the nation being in the majority, the minority must submit to that danger of oppression as an evil infinitely less than the danger to the whole nation from a will independent of it.

    You sound a lot like our friends on the left, though you want to extend your protection to a different class of people. Just as the Constitution extends no special protection to homosexuals as homosexuals, it extends no special protection to the rich as the rich.

    Now, there may be good policy reasons for treating the rich (or homosexuals) in a particular fashion, but they are subject to normal political debate and are not topics to be placed off limits “because the Constitution says so”.

    Subotai (acf3e5)

  44. Subotai, you don’t know that the founders put anti-majoritarian principles into our bill of rights?

    My argument is certainly not with them. It’s with your history teacher, my friend.

    And while corruption is a serious problem, certainly partly from Goldman Sachs type involvement with political parties and bailouts, to say this compares with the entitlement wealth transfers is simply wrong to a massive degree.

    Both are problems, of course, and your problem certainly shouldn’t be understated.

    But you’re denying that the majority is demanding high cost benefits and low taxes? That’s the core problem with our budget.

    Dustin (b54cdc)

  45. Subotai, you don’t know that the founders put anti-majoritarian principles into our bill of rights?

    Wait, you are saying that the Founders (aka “the majority”) were anti-majoritarians? That makes zero sense.

    And which particular “anti-majoritarian principles” did you have in mind? By definition, anything which made its way into the Constitution was in fact a majoritarian principle.

    Subotai (acf3e5)

  46. Subotai, you don’t know that the founders put anti-majoritarian principles into our bill of rights?

    I don’t know that. Can you cite some examples?

    But you’re denying that the majority is demanding high cost benefits and low taxes?

    If you really believe that “the majority” are doing this then I wonder at your participation at a web site dedicated to working withing the rules of a republican system of government.

    But as I’m sure you already know “the majority” are doing no such thing, which is why there are projections that the majority will kick the Democrats out of power this November.

    The problem is that the Ruling Class are dedicated to enriching themselves at the expense of the Middle Class. They have zero intention (alas!) of giving away their own money to the poor.

    The notion that “the poor” are threatening to pull down “the rich” is a silly Randian fantasy. The rich and the poor are in cahoots against everyone else.

    Subotai (acf3e5)

  47. I am aware of the differences in super-majorities required by the U.S. Constitution, recommended both by Robert’s Rules and by Mason’s Rules in general, required by several state Constitutions, and more than a few other Charter and Constitutions, and their differing amendment processes.

    If the proposition is that a bare majority can re-write the U.S. Constitution (or other such document) as it sees fit, this is a democracy, not a republic, and any freedom you hold dear is subject to erasure at that temporary majority’s whim. Be damned careful what you wish for.

    htom (412a17)

  48. Be damned careful what you wish for.

    I’m not “wishing” for anything. I’m pointing out that this country was founded on explicitly majoritarian grounds. That’s one reason why the Founders considered the quality of the citizenry to be of paramount importance.

    I suggest that you be damned careful of what you wish for. You may like the idea of tyranny now, because you see the tyrants as being with you, but history shows that tyrants turn on their own supporters eventually. How did the Soviet Union work out for you?

    Subotai (acf3e5)

  49. You seem fond of Thomas Jefferson. Here’s some more:

    Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression. — Thomas Jefferson, 1st Inaugural, 1801.

    Those who bear equally the burthens of Government should equally participate of its benefits. — Thomas Jefferson: Virginia Resolutions, 1775.

    The majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society. — Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1816.

    Great innovations should not be forced on a slender majority. — Thomas Jefferson to John Armstrong, 1808.

    [Sometimes] the minorities are too respectable, not to be entitled to some sacrifice of opinion, in the majority. — Thomas Jefferson to James Madison, 1788.

    There’s also a quote somewhere where he says that the majority decision should rule unless some other standard has been previously set — which is the case where super-majorities are established.

    Comparing me to either a communist or a Communist I would have thought beneath you; I’m disappointed.

    htom (412a17)

  50. Found it:

    The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided.” –Thomas Jefferson: Parliamentary Manual, 1800.

    “[To establish republican government, it is necessary to] effect a constitution in which the will of the nation shall have an organized control over the actions of its government, and its citizens a regular protection against its oppressions.” –Thomas Jefferson to Lafayette, 1816.

    “[The first step is] to concur in a declaration of rights, at least, so that the nation may be acknowledged to have some fundamental rights not alterable by their ordinary legislature, and that this may form a ground work for future improvements.” –Thomas Jefferson to John Jay, 1788.

    Bolding mine.

    htom (412a17)

  51. Bolding mine.

    Are you saying that you think that Jefferson would have believed that these exists a “fundamental right” to gay marriage? If not, what are you saying?

    There’s also a quote somewhere where he says that the majority decision should rule unless some other standard has been previously set — which is the case where super-majorities are established.

    Super-majorities ARE majorities. I don’t know why you keep acting as if they are the opposite. That aside –

    Which super majority has ever expressed the view that gay marriage should be legal?

    For that matter, which super-majority ever ratified the 14th Amendment?

    Subotai (acf3e5)

  52. Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression. — Thomas Jefferson, 1st Inaugural, 1801.

    There is some disagreement over which exactly are the “equal rights” which all are to possess. Perhaps more importantly here, there is disagreement over who is to decide what those “equal rights” are. You think it should be the courts. Jefferson though otherwise.

    Letter from Jefferson to a judge.

    In denying the right [the judges] usurp of exclusively explaining the constitution, I go further than you do, if I understand rightly your quotation from the Federalist, of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our constitution a complete felo de se. For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scarecrow; that such opinions as the one you combat, sent cautiously out, as you observe also, by detachment, not belonging to the case often, but sought for out of it, as if to rally the public opinion beforehand to their views, and to indicate the line they are to walk in, have been so quietly passed over as never to have excited animadversion, even in a speech of any one of the body entrusted with impeachment. The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.

    Sept 1819.

    Subotai (acf3e5)

  53. To claim that judges should never weigh in on “social” issues is asinine. WTF is a social issue anyway as apposed to a legal one? Its nonsense.

    Is the negation of the majority vote serious? Sure, but its a necessary and deliberate tension set up from the beginning in our system of government. Remember that whole lesson in your civics class about tyranny of the majority? Your failure to mention that principle and the judiciary’s specific and defined role in limiting it is glaring.

    You also act as if there are no consequences to not over-ruling a majority. The “contentious social issue” of its time, Slavery, ended up not being solved in court just as you would wish. Rather it was settled at least in part by a war that to this day has the grim distinction of having the highest recorded number of American casualties. A war that still tugs at the fabric of our nation. If instead, at the very beginning of our country, the judiciary had upheld the rights of slaves as human beings rather than as property could not things have been quite different and without such a high cost?

    Lastly, you say: “A courtroom is not the place to resolve contentious issues in the culture wars. It is time we recognized that.”

    False assumption. No one thinks that a judges ruling wins a culture war. However what it can insure when it works properly and has happened in this case, is that both parties in the conflict can have more or less equal armaments. The minority viewpoint has a balancing modifier to make up for its lack of popularity and/or supporters provided its based on reason. That’s how its supposed to work. The majority after all, can still pass a constitutional amendment if it so chooses, without being subject to judicial review. The will of the majority has been tempered, not thwarted.

    Patrick (d88232)

  54. Pretty tough to see how there are equal armaments when the Gov and AG decline to defend, and the Judge is in favor of the opponent’s position.

    This has f@ckall to do with tempering or thwarting the will of the majority. It has to do with rewriting centuries of common definitions of terms to force an ideological agenda on the public that does not want it.

    JD (3dc31c)

  55. To claim that judges should never weigh in on “social” issues is asinine. WTF is a social issue anyway as apposed to a legal one?

    Legal issues are the ones judges are supposed to concern themselves with. Social issues are the ones which are none of judges business.

    Remember that whole lesson in your civics class about tyranny of the majority?

    I don’t remember it it. Why don’t you remind me? “Tyranny of the majority” is a not phrase which has any meaning within the American civic framework.

    If instead, at the very beginning of our country, the judiciary had upheld the rights of slaves as human beings rather than as property could not things have been quite different and without such a high cost?

    How stupid do you have to be to believe that if only the all-powerful SCOTUS had decreed from its giant head ‘slaves are human beings’, the Civil War would not have happened?

    The majority after all, can still pass a constitutional amendment if it so chooses, without being subject to judicial review.

    The minority can always pass a constitutional amendment making “gay marriage” legal if it so chooses, without being subject to judicial review also. Why don’t you you do that?

    The minority viewpoint has a balancing modifier to make up for its lack of popularity and/or supporters provided its based on reason. That’s how its supposed to work.

    Please cite me that specific provision of the US Constitution. I’m not familiar with it.

    Subotai (acf3e5)

  56. The minority can always pass a constitutional amendment making “gay marriage” legal if it so chooses, without being subject to judicial review also. Why don’t you you do that?

    The gay rights leaders could have lobbied for the Equal Rights Amendment, providing a stronger ruling for striking down definitions of marriage using gender classifications.

    Pretty tough to see how there are equal armaments when the Gov and AG decline to defend, and the Judge is in favor of the opponent’s position.

    His bias was obvious when he ignored the rule the Supreme Court reiterated in State Oil Co. v. Khan.

    Michael Ejercito (249c90)

  57. But the prospect of sabotage by sloppy or disinterested litigation is not the only reason that deciding such issues in the courtroom is a bad idea.

    Disinterested legislation is surely a good thing, and unlikely to sabotage anything.

    However, I admire your consistency. You put as much thought and care into choosing your words as you do to your arguments.

    Dave Weeden (eac079)

  58. Patterico, I think you and I are on exactly the same page here. I actually am terribly disappointed by Judge Walker’s ruling even though if I were a state legislator, I’d vote to permit same-sex marriage, or if I were a governor I’d sign a bill enacted to that same effect.

    Would you support a constitutional amendment forbidding states from using gender classifications in the legal definition of marriage?

    Justice Kennedy might instead be persuaded to affirm on substantive due process grounds, expanding Lawrence v. Texas — but there really ain’t no such thing as substantive due process, and that’s just a misleading label for “imposing my will as a philosopher-king just because I can.”

    That would require misapplying the Glucksberg test.

    And not even he voted for an opportunity to rule on how Lawrence affects the constitutionality of anti-bigamy laws when the petition for cert in State v. Holm (a Utah Supreme Court decision that rejected the appellant’s argument that Lawrence provided precedent to strike down Utah’s anti-bigamy law.)

    Here, does his empathy lead him to side with California gays who are dissatisfied with state-approved near-equivalent domestic partnership rights?

    I am not sure that merely being denied social meaning and cultural meaning (the “harms” that Judge Walker found) would rise to the level of a criminal conviction and sentence at issue in Lawrence.

    And remember that the Supreme Court denied cert to Citizens for Equal Protection v. Bruning, an Eight Circuit decision upholding Nebraska’s marriage amendment, which went further than Proposition 8. At least one or two of the liberal justices chose to vote to deny cert in that case. (I do not know if Kennedy voted in favor of cert.)

    I think there is a substantial possibility, maybe a probability — and thus a very serious risk, from the viewpoint of SSM supporters — that the result will instead by a 5/4 decision SCOTUS against judicial imposition of same-sex marriage. And that will be the middle-term disaster.

    Then that means they would have to appeal state-by-state and work to get a constitutional amendment like the suffragettes.

    But one thing they have failed to explain is why it matters what name is used for same-sex unions. Ironically, as gay people and gay unions are more accepted, using a different words for gay unions would be more tolerated as well, even if defining marriage regardless of gender would be tolerated by those same people. After all, if the word “gay” “lesbian” and “homosexual” are no longer considered offensive, I fail to see how those people would find a different word for gay unions offensive.

    And finally, by the time this case reaches the Supreme Court, it may be consolidated with other court cases challenging marriage laws where same-sex couples are denied substantive legal benefits, not mere social meaning.

    Michael Ejercito (249c90)

  59. #13 Sean P — It should be noted that the proponents of Prop 8 were allowed by Judge Walker to represent the defense in this trial (as opposed to leaving the defense with nobody representing it). That was, however, pretty much the only favorable ruling that supporters of Prop 8 got in Perry v. Schwarzenegger.

    Joshua (9ede0e)

  60. i’m not totally against gay marriage, coz gay persons need to be happy to `

    Beverage Dispensers : (e0f392)

  61. i think that gay marriage should be allowed in certain states but not in other states ;-“

    Hair Loss Treatments (02fe99)


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