National Review Online expresses justifiable indignation at the latest case of judicial outrage.
It has been clear since before the beginning of the year that Judge Vaughn Walker of the U.S. District Court in San Francisco was on a mission to establish a federal constitutional right to same-sex marriage and thereby to overturn Californiaâ€™s Proposition 8, a constitutional amendment passed by the people of the state in 2008.
From his decision to have a â€œtrialâ€ of the â€œfactsâ€ in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffsâ€™ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings… , Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while.
What Walker did not prepare us for is the jaw-dropping experience of reading his sophomorically reasoned opinion. Of the 135 pages of the opinion proper, only the last 27 contain anything resembling a legal argument, while the rest is about equally divided between a summary of the trial proceedings and the judgeâ€™s â€œfindings of fact.â€ The conclusions of law seem but an afterthought â€” conclusory, almost casually thin, raising more questions than they answer. On what grounds does Judge Walker hold that the considered moral judgment of the whole history of human civilization â€” that only men and women are capable of marrying each other â€” is nothing but a â€œprivate moral viewâ€ that provides no conceivable â€œrational basisâ€ for legislation? Who can tell? Judge Walkerâ€™s smearing of the majority of Californians as irrational bigots blindly clinging to mere tradition suggests that he has run out of arguments and has nothing left but his reflexes.
But the deeper game Judge Walker is playing unfolds in those many pages of â€œfact findingâ€ that make up the large middle of his ruling. There, through highly prejudicial language that bears little relation to any fact, the judge has smuggled in his own moral sentiments â€” in precisely the part of his opinion that would normally be owed a large measure of deference in the appellate courts.
William A. Jacobson is optimistic that Judge Walker’s decision will be overturned.
The politics of this opinion probably could not come at a worse time for Democrats. There is no groundswell of support for gay marriage, with even Obama having expressed the view during the campaign that marriage is between one man and one woman. The opinion attempts to short-circuit the political process by finding a constitutional right which most people — even people who might support gay marriage — do not recognize.
At the end of the day, I do not expect this decision to survive constitutionally, and the supporters of gay marriage may rue the day that they sought to impose a solution from the courts of law rather than the court of public opinion.
I’m less sanguine about Justice Kennedy’s likely ruling myself, though I think rational constitutional interpretation has at least a chance. I do think Erik Erikson is right in observing that, in the end, Americans can just add a clarifying amendment to the US Constitution and put a stop to the nonsense once and for all.
39 states have banned gay marriage.
It takes only 38 states to ratify a constitutional amendment.
A majority of the American public and three-quarters of the American states have been overruled by one federal judge in San Francisco. To be fair, the ruling only affects Northern California. It will be appealed. The odds are, for now, that the judge will be overruled.
But again and again the political elites in this country think they know best. From the mosque at Ground Zero to gay marriage to Obamacare, the majority of the people and states are forced to deal with a minority that does not respect them and democratic and legal institutions that oppose them.
If a minority of political elites and liberals can impose their will and values on a majority sufficient enough to amend the constitution, it is time for the majority to respond with constitutional force.
In Thomas Jeffersonâ€™s words, â€œIn questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.â€