What do history's most notorious despots have in common with many of the flag-waving, patriotic politicians of our day? Both groups rise to power through the exploitation of fear, which has become a societal plague. There have been widespread casualties. We need an antidote. Feardom offers its readers a much-needed immunization.
photo credit: sammyd0971
Yesterday’s decision by Judge Walker, Chief Judge of the United States District Court for the Northern District of California, in favor of homosexual marriage advocates is the conclusion of the latest battle in the war against “traditional” marriage. Walker’s decision comes after a 2.5 week trial in January where 16 witnesses were summoned by Proposition 8 opponents, and two were summoned by proponents.
As review, voters in California last November gave their support in favor of Proposition 8 by a 52.3% margin, thus overturning a California Supreme Court decision that effectively struck down Proposition 22, passed a decade earlier, declaring marriage in California as being between a man and a woman. Proposition 8 placed the same language (“Only marriage between a man and a woman is valid or recognized in California.”) into the state’s constitution itself, thus circumventing the Supreme Court’s declaration of unconstitutionality.
(Federal) Judge Walker, however, yesterday declared Proposition 8 unconstitutional—not compared to California’s Constitution, but that of the United States of America. The decision rests on two separate but similar arguments, namely, that the newly-enacted amendment to the California Constitution violates both the Due Process and Equal Protection Clauses in the 14th amendment.
Specifically, Judge Walker (who is homosexual) declares that there is a “fundamental right to marry” (p. 111), and Proposition 8’s exclusion of homosexual marriage therefore violates the Due Process Clause. He also declares that one’s sexual orientation does not provide a “rational basis” (pp. 130-1) and thus violates the Equal Protection Clause. Summarizing, Walker states (p. 135):
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.
This ruling, of course, plays fast and loose with the very point of Proposition 8: to define just what marriage is, according to state law. Having narrowly defined marriage as being between a man and a woman, California would have been able to provide said marriages on an equal basis to all eligible/applicable parties, with no thought of discrimination.
But marriage, many argue, is some supposed “fundamental right” to which all individuals should be entitled. Walker supplies a precedent-based judicial formula for determining when a right is fundamental (p. 111):
To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”
And here we have our starting point. To begin our analysis, and inevitable rebuttal, let’s first envision a situation in which government is completely abolished. In absence of government, individuals are left to their own devices to protect their life, liberty, and pursuit of happiness. Without government dictating what rights are and are not fundamental or legitimate, we must ask: what rights do these individuals have?
Clearly, an individual in this scenario cannot have a fundamental right to marriage, as marriage (as we now know it) does not exist; government does not exist, and therefore cannot regulate this matter. Churches may offer such a ceremony as a religious rite, but are free to decide what rules they will impose; homosexuals in this case would not have a fundamental right to a ceremony that nobody would administer to them.
In absence of government, then, the only and true fundamental right is that of association. Two homosexuals would be able to co-habit and devote their lives to one another to their heart’s content, just as they are free to do today. This freedom of association is the only fundamental right, as marriage—whether regulated by government, or exclusively administered by churches—is an external sanction of a pre-existing relationship. Despite what some black-robed lawyers have said, there is no fundamental right to marry. Neither should we be determining what somebody’s real rights are based on “history, legal traditions, and practices.” Are our standards and principles so neutered that we have sacrificed self-evident truths for precedent and policy?
But back to the core arguments in light of the 14th amendment—arguments which Walker asserts are “independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”
This decision, or other decisions regarding this and other referenda, have often been outright dismissed by those who voted in favor of the law in question. “Judges should not overturn the will of the people!,” they argue. Case in point: Austin R. Nimocks, senior legal counsel for the Alliance Defense Fund who fought to uphold Proposition 8 in Walker’s court, vowed to appeal yesterday’s ruling, saying “We’re obviously disappointed that the judge did not uphold the will of over 7 million Californians who made a decision in a free and fair democratic process.”
But this is patently absurd, for those who in some cases support the rule of law and republican government, in this case support direct democracy—regardless of whether the law in question has violated the Constitution. Rather than decrying judges for deciding against them, these individuals should be addressing the constitutional merits of the law(s) they support. If the judges overturn the constitutional will of the people, then yes, we have a problem (and an “activist” judge).
So, first up: the Due Process Clause. This clause reads:
…nor shall any State deprive any person of life, liberty, or property, without due process of law.
Due process, in English common law and American law (pre-FDR), was a limited procedural guarantee—a process whereby individuals were properly informed of the criminal charges against them and were given the opportunity to defend themselves. Alexander Hamilton, for example, despite his expansionist interpretation of most governmental powers, stated this in regards to the New York Bill of Rights’ inclusion of the term “due process”: “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature” (emphasis added).
Since FDR’s time, the courts have conjured up what’s called “substantive due process”, whereby the court will determine if any government action infringes upon certain “fundamental rights”. Thus, due process has now been warped into applying to all legal processes for all government agencies in both criminal and civil law.
It is only in this extremely loose interpretation and understanding of “due process” that the supposed “fundamental right” to marry can have any defense, for Walker’s assertion—that denying homosexuals their “fundamental right” to marry each other violates the individual’s right to due process under the law—can only be valid if “due process” means something altogether different than what it once did.
Next up: the Equal Protection Clause. This clause reads:
…nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.
Access to a marital union does not provide any additional protections. One can argue that it does, however, provide for certain government-bestowed privileges, such as tax-breaks, visitation rights, inheritance, etc. In these cases, however, many state governments have conferred similar privileges upon “civil unions”, thus giving those benefits to couples generally, while still retaining the man/woman definition of marriage.
Whether or not a state has such a classification with the same legal benefits as marriage, one cannot reasonably argue that an individual is not being protected by law by being denied access to a certain governmental certification. Equal protection under the law refers to a defensive shield against punitive government action, ensuring that governments punish and enforce the laws equally, regardless of race, gender, sexual preference, or what type of junk food one likes. Just as the blind man who is denied a drivers license still enjoys equal protection under the law, though he is not able to receive said license, so too do homosexual individuals remain protected by laws even when denied the ability to have their companionship sanctioned by the government.
Interestingly, Judge Walker includes in his decision an explanation of when he, as a judge, would defer to the public’s decision rather than enforce his own. On page 118 of the opinion, Walker states:
The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational.
Walker, a homosexual, simply dismisses the classification (that marriage can be applied only to heterosexuals) because he deems its basis “irrational”. Thus, he refuses to defer judgement to the people (who decided that such a classification was rational and important) and pronounces his own. On this foundation of his personal decision, then, Walker looks to the clauses we have here analyzed for support of his belief that California’s constitutional amendment is unconstitutional.
Again, rather than appealing to self-evident truths and inalienable rights, Walker and his like-minded judicial colleagues divine “fundamental rights” out of thin air when these have some historical precedent in our country. “Plaintiffs seek to have the state recognize their committed relationships,” Walker states on page 113, “and plaintiffs’ [homosexual] relationships are consistent with the core of the history, tradition and practice of marriage in the United States“ (emphasis added).
In response to Walker’s ruling, Rea Carey, executive director of the National Gay and Lesbian Task Force, stated: “This ruling marks a victory for loving, committed couples who want nothing more than the same rights and security as other families. From the start, this has been about basic fairness.” This, too, is argued poorly, for couples do not have rights, nor do any associations of individuals; we in America do not enjoy our rights because of a relationship with another person, but because we are individuals. While heterosexual marriages are associated with certain government-regulated privileges, these are not rights—as explained previously, the only right is one of free association, which individuals of any sexual preference enjoy.
Homosexual couples desiring society’s sanctioning of their union are not being criminally prosecuted or punished in any way, thus the true meaning of due process does not apply, and they are as equally protected under the law as are children, widowed seniors, and heterosexual couples. Walker’s arguments rely on an expansionist, neo-liberal interpretation of the U.S. Constitution that, while supported by precedent, is not supported by a simple and sincere interpretation of the law.
That a homosexual judge in San Francisco would rule against Proposition 8 is not surprising to anybody. The funny thing about black-robed lawyers is that when we agree with their opinions, we extol them as stalwart defenders of liberty, but when we disagree, we label them judicial activists overriding the will of the people and individual rights.
This, of course, is the danger of allowing the government to define, regulate, and micro-manage marriage. In the end, Walker’s ruling is fairly inconsequential as the appeal is already underway, and the ninth circuit court will soon hear the case.