image We have reached a crossroads.  Now lone unelected, unaccountable judges think they can overrule the will of the voters.  The Los Angeles Times reports that  U.S. District Judge Vaughn Walker ruled California’s Proposition 8, a ban on same-sex marriage unconstitutional:

A federal judge declared California’s ban on same-sex marriage unconstitutional Wednesday, saying that no legitimate state interest justified treating gay and lesbian couples differently from others and that “moral disapproval” was not enough to save the voter-passed Proposition 8.

California “has no interest in differentiating between same-sex and opposite-sex unions,” U.S. District Chief Judge Vaughn R. Walker said in his 136-page ruling.

The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.

First, this is a gross violation of state’s rights in clear contradiction of the 10th Amendment, in effect this is like ruling the Constitution unconstitutional.  This judge now made marriage a federal issue when Courts tried to avoid making it so.  While I’m sure there is much celebration in the homosexual community, this ruling in fact will open up a can of worms.  Can you say – Federal Marriage Amendment?  The push for that did seam to die down with a string of state electoral victories when marriage was on the ballot, and federal courts stayed out of it.  This will also likely go to the U.S. Supreme Court and will test Elena Kagan’s statement (under oath) there is no constitutional right to gay marriage.

Ironically this ruling contradicts the ruling in Massachusetts that declared the Federal Defense of Marriage Act unconstitutional as   Judge Joseph L. Tauro in one of two rulings he issued in the matter that DOMA was unconstitutional based on the 10th Amendment.  So it’s unconstitutional for Congress to tell a state how federal money should be spent because of how the Congress defined marriage, but it’s ok for a Federal judge to do it?

Well I’m sure he considers his ruling the “law of the land” as well.  I’m sure his background didn’t color his decision even one iota (he’s homosexual).  What is ironic is that the California Supreme Court (not exactly a conservative bunch) upheld the people’s right to vote on the manner even if it went against a prior ruling.  So I guess he knows better than them as well.

Well, but hey, at least we know who to thank for the extra 7% turnout in November.

Update: And the predicted calls for a Federal Marriage Amendment begin.  I think those celebrating this ruling now are going to end up regretting it later.

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  1. “Now lone unelected, unaccountable judges think they can overrule the will of the voters.”

    That is how the United States was intended to work, and how they have worked for over 200 years. The founding fathers clearly explained this as obviously necessary:

    “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”. -the Federalist Papers.

    Your apparent surprise that our government works this way is, quite frankly, hard to take seriously.

    1. “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.” – The 10th Amendment of the U.S. Constitution.

      I’d say that trumps the quote you likely ripped from its context in the Federalist Papers.

      Also from the Federalist Papers, and I would suspect Hamilton would say the same about judges:

      “No legislative act contrary to the Constitution can be valid.
      To deny this would be to affirm that the deputy (agent) is greater
      than his principal; that the servant is above the master;
      that the representatives of the people are superior to the people;
      that men, acting by virtue of powers may do not only what their powers
      do not authorize, but what they forbid. It is not to be supposed that
      the Constitution could intend to enable the representatives
      of the people to substitute their will to that of their constituents.
      A Constitution is, in fact, and must be regarded by judges as
      fundamental law. If there should happen to be a irreconcilable variance
      between the two, the Constitution is to be preferred to the statute.”
      — Alexander Hamilton

  2. It never ceases to amuse me that the Federalist Papers say the courts will be the weakest branch of the government. Perhaps that’s why they left us with no “check and balance” short of a constitutional amendment. Though, what good is that, when they get to define what said constitutional amendment means?

    One of these days we’re going to have to come up with a way to convince the judiciary the Constitution doesn’t mean whatever they want.

  3. Shane I would point out that invoking the 10th Amendment’s reservation of non-delegated power to the States and the people respectively without addressing the 14th Amendment which specifically limits the power of states is problematic. It creates a false impression that the Constitution places no limits on the States. Additionally, I think pointing to the judge’s sexual orientation is a dangerous move to make. Supporters of same-sex marriage could make the same argument if a heterosexual judge decided the case against them. The reality is that everyone has a sexual orientation and a law such as Prop 8 brings up issues that weigh the value of each type of relationship in comparison to each other. If sexual orientation is de facto treated as a bias, I suppose only a bisexual judge could fairly decide the case.

    1. You make a good point with bringing up the sexual orientation. However, the California Supreme Court upheld Prop 8 even though they personally disagreed with it.

      Regarding the 14th Amendment, you are right that states can not deprive anyone life, liberty and property. That’s hardly a case for marriage. You’ll find the “right to marriage” alongside the “right to privacy” (as cited in Roe v. Wade) it’s not in there.

      Is it possible for those who agree with gay marriage see that this isn’t the way it should be done? Look at the 14th Amendment which abolished slavery permanently, it went through Congress and then had to be ratified by the states. At the very least homosexuals should be willing to do that, but instead they rely on the Courts who don’t make law.

      1. Well, technically it’s the 13th Amendment which abolishes slavery but that’s unimportant. As a historical point, it’s important to note thate the 13th, 14th and 15th amendments were the subject of great controversy due to the manner in which they were passed. While they did go through congressional approval and state ratification, the confederate states were denied representation in congress at this time and their readmission to the legislative branch was conditioned upon the ratification of the amendments. That raises numerous constitutional issues, but for the purposes of this discussion, Ithink we should remember that the amendments securing racial non-discrimination were uniquely passed and it may not be accurate to paint their passage as equivelent to the passage of any other constitutional amendments.

        In terms of the rights enumerated in the constitution, it should be noted that the 9th Amendment specifically provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was passed specifically to address the concerns of anti-federalists that inclusion of a bill of rights would allow the government to act outside the scope of its power so long as it didn’t infringe on the rights textually granted in the Bill of Rights. Any argument that finds the people do not retain a right simply because it is not textually listed in the Constitution ignores both the text and intent of the 9th Amendment.

        The fundamental rights doctrine is based on the idea that the constitution’s enumerated rights necessarily contain additional components. For example, the Supremem Court found the right to privacy exists because the 1st, 4th and 3rd amendments require that people have areas of their lives in which they possess the right to be left alone by the government. Most of the rights which are subject to controversy are an extension of this right to privacy. I think arguments about the scope of privacy are completely warranted, but I think it’s dangerous to simply argue that a right to privacy doesn’t exist because the word privacy doesn’t appear in the Constitution.

        The fundamental right to marriage has been acknowledged in this country for almost a century. The Prop 8 decision found that this right is not dependent on the identity (in this case the gender) of the participants in the marriage. At the root I think your argument is less about the marriage decision itself than with the process of judicial review in general. If you primarily care about the fact the decision is made by the judiciary which can overturn a law passed by the majority (either through direct or representative democracy) then you are arguing that our country got it wrong in 1803 (14 years after ratification of the Constitution) by not amending the constitution in the wake of Marbury v. Madison. I think this a hard sell given the fundamental components of a common law legal system and the fact that many of the founders were still alive at this point.

      2. My bad, you’re right that was the 13th Amendment… I’ll have to read your comment more in depth a little later. I don’t have time to respond at the moment.

  4. I am Ron Branson, National J.A.I.L. Founder. The current history Re Prop 8 is that the People first passed Pop 22, a law defining Marriage. The California Supreme Court overturned it. The People then made it a constitutional amendment. The California Supreme Court upheld its constitutionality. This decision was then challenged in Federal District Court. The Federal Court has now overturned this constitutional amendment, determining the California Constitution in part is unconstitutional. This determination now faces challenge in the Ninth Circuit.

    There is a war between the Constitution of this country and its judges, between the supreme law of this land and the judiciary – only one can survive. Either judicial immunity will destroy the People, or the People will prevail over judicial immunity – there can be no third alternative. The overriding problem in our country is not the Constitution, Congress or the lack of laws, but rather a self-made doctrine created by judges, and for the judges, and that is the doctrine of “Judicial Immunity,” which establishes “Judges can do no wrong!” In other words, judges cannot be held accountable to their Oaths of Office, the Constitution, or the laws of this land, as they are immune from lawsuit!

    This country cannot survive without subjecting of the Doctrine of “Judicial Immunity” to the findings of a People’s Special Grand Jury created for that purpose. Well stated is the proverb, “No man is above the law!”

    Ron Branson
    National J.A.I.L. Commander-In-Chief

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