Democracy does not mean three wolves and a lamb voting on what’s for dinner.
And that’s why yesterday’s federal court ruling overturning California’s Proposition 8 is good news for all Americans. Prop 8 did something that should never be done—it put the question of a minority group’s rights up for a vote.
America’s courts have two functions, one them far less understood than the over—and just as crucial to our democratic system. Of course, our courts try cases of wrongdoing—someone’s accused of breaking the law, they have their day in court, they’re found innocent or guilty. In addition, however, our courts try a special kind of case—they judge whether a law itself violates the law. Sometimes the government creates this law on its own, through Congress, a state legislature, a city council, etc.. Sometimes, as in California, people vote for a law directly through a referendum—via propositions.
It’s one of these laws-that-people-voted-for that Judge Walker found illegal—i.e., unconstitutional. He found that Prop 8 is a law that separates Californians into two groups, giving a certain right to one while denying it to the other. And he couldn’t find any logical, evidence-based facts to justify the discrimination that Prop 8’s law demands. So he had to overturn the law that people had voted for—because they voted for a law that is illegal.
Voters aren’t constitutional lawyers, so they can’t be expected to understand that sometimes they vote to create a law that is illegal. But that’s what happened in California. And Judge Walker reminded everyone that a community can’t do that—not even if 99% of the voters want to.
This is not “judicial activism,” it’s being a judge. Judge Walker was doing the job he was asked to do when appointed by President George H.W. Bush.
Yes, the will of the majority—at least, as expressed in the 2008 election that passed Proposition 8—has been overruled. Because the majority got to vote on something they shouldn’t have been allowed to vote on—the rights of a minority. And because the majority voted to restrict the minority’s rights based, as they themselves put it, on tradition, morality, and the religious beliefs of the majority.
And that’s exactly what the majority in America is not allowed to do. It’s right there in the 14th Amendment to the Constitution:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
And since government is in the business of granting marriage licenses, and government is in the business of guaranteeing the rights that result from being married, anything that restricts a special group from the right to marry cannot be legal. Even if the majority votes to create such a restriction.
Evidence of those good reasons? Judge Walker said there was none. Tradition, feelings of discomfort, and strongly-held religious beliefs are not, in 21st-century America, good enough reasons to deny a minority the civil rights enjoyed by the majority.
Moments after the ruling, the American Family Association launched a vicious attack on America’s legal system. AFA said that because Judge Walker is gay, he cannot rule fairly on this case. If that’s true, judges who drink shouldn’t be judging drunk-driving cases; judges without children shouldn’t be judging cases involving school taxes or teacher behavior; judges who own guns shouldn’t judge cases involving the right to bear arms; and Catholic judges shouldn’t rule on abortion cases.
Or is it that only Catholic judges should rule on abortion cases, and only judges who drink should rule on drunk-driving cases?
This makes it impossible to have any judges at all. There are no judges without personal lives, there are no judges who have nothing in common with the cases they judge. AFA has done a wonderful job of exposing themselves for what they are—completely cynical about the American system of democracy. They have always demanded the kind of “democracy” in which the Bible of a small number of people rules everyone else.
Until AFA deposes the American government and substitutes a theocracy, all Americans can breathe easier because of Judge Walker’s ruling—in which he said that fear and discomfort with homosexuality, and unscientific ideas about the brains of homosexuals, are not a sufficient reason to deny government benefits to a certain group of people. You don’t have to be a member of that certain group to appreciate that this ruling celebrates your country, and makes you safer in it.