Chief U.S. District Judge Vaughn Walker today ruled that California's Proposition Eight is unconstitutional.
The pro-Proposition Eight camp will now appeal to the Ninth Circuit Court. If they lose there,
they will appeal to the United States' Supreme Court. By all accounts I have have listened to or read, the process will take another couple of years.
I suspect that this question will be with us for a very long time regardless of what happens over the next two years.
We have debated the questions together via our family blog quite a bit. I suspect that there is not a great deal that we would say beyond what we have already said. A synopsis of this current decision in California might be helpful.
6 comments:
Doug is right that this will not be the last of this issue. It will eventually end up in the Supreme Court. Nevertheless, this decision is the silliest decision I have ever heard a judge make.
A gay federal judge relied on the opinions of mostly-gay "expert" witnesses, ruled that an amendment to the California constitution, which was adopted in perfectly proper fashion by a substantial majority of voters, is "unconstitutional."
So it has finally come to this. The constitution is unconstitutional.
Elements of state constitutions can be found unconstitutional as they relate to the federal constitution. I am imagining that such is his point of reference. I could be wrong given I haven't read the decision.
I might add that a ballot initiative, just like any legislation (both perfectly proper ways to change/make rules), does not guarantee constitutionality.
As well, heterosexual "expert" witnesses had plenty to say.
Personally, I just wish the heterosexual "experts" would just be honest enough to cut to the chase and declare their true and single motivation: God says it's wrong, and if God says it's wrong, that is all we need to know. Instead they labor on with all kinds of statements about children and family and tradition as if these were the real reasons. After all, marriage is clearly not just about procreation, tradition constantly changes around us, most often for the better.
Of course, I don't have time, desire, or expertise to read the entire decision, but before stating the above opinion, I did look around to find out whether the judge meant "unconstitutional" in terms of the federal constitution, but I could find no such reference. I did find this from Judge Walker's decision:
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. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
So no mention is made of the federal constitution, and I think the judge was very aware that such an argument would not fly. Also, Prop 8 is an amendment to the California constitution, so it is not the same as legislation. Prop 8 is now a part of the California constitution. So I can only conclude that the Judge Walker considers the constitution to be unconstitutional.
We are dealing with semantics/context when we consider the word 'constitutional'. Discussing what a word means or its context can be unpleasant because it seems knit-picking, but that said, I believe that Judge Walker (a federal judge) was referring to Proposition Eight as unconstitutional as it relates to the US Constitution, not the California Constitution.
I believe this because I think that as a federal judge, it is his responsibility to make the judgment as it applies to the federal constitution. If it were just an internal state affair, it would not be on his docket.
I also think this because I believe that when we say the word 'unconstitutional', we assume the federal constitution because all state constitutions must be subserviantly constitutional to the US Constitution.
So I believe that Judge Walker has not shown any discordant logic, but that he has declared Prop Eight federally constitutional.
Essentially, Prop 8 is a state matter, as are many other matters. Originally the States had great leeway in internal matters, but over the years the Federal government has stretched its tentacles into state matters. This includes the judiciary, and States' rights are part of this issue. So even if Judge Walker is referring to Federally unconstitutionality, the notion that the Fourteenth Amendment to the U.S. Constitution prevents state and federal governments from maintaining the traditional understanding marriage seems far-fetched. The universally accepted understanding of what marriage is existed in this country when the Amendment was enacted and remained so for over 100 years. It still prevails today. Nevertheless, should the time come when the traditional concept of marriage no longer prevails, it can and will be overturned democratically. These types of court fiats do not sway popular opinion. They only harden people's opinions. I have said here in the past, but I will say it again, the best way for GBLTers to achieve their aims is by winning the hearts and minds of the public. Like Roe v Wade, controversial issues are not solved in the public mind by court order. Such orders lead to evermore division.
I agree that the best way to achieve what I perceive as GLBT equality will happen as hearts and minds are changed. That is happening quite rapidly if one considers the overall progress in a relatively short period of time.
However, the judiciary does lead out quite often in a variety of social issues and civil rights issues, & it is often the legislative branch that tends to follow slowly in these areas. There are ample examples of course.
One positive result of judicial decisions is that they force discussion which is usually, although not painlessly, a good thing.
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