The California Prop 8 Ruling

So if you have been following the news then you know a Federal Court ruled that the recent change to the California State Constitution defining marriage as only being between a man and a woman is unconstitutional under the United States federal constitution.

I applaude this ruling.

I know that there are many many people who do not, and I will not speculate or denigrate their motives here. My position is that movement towards greater individual liberty is generally a good thing and that movement towards less individual liberty is generally a bad thing.

(Please take note of that word GENERALLY, in the sentence. It is there for a reason. There are exceptions and remember that before you start listing something like healthcare trying to imply I am inconsistent.)

There are and will be of course those who decry this an tyranny from the bench. That the will of the people were overruled by a black-robed jackbooted thug who committed the worst of all judicial crimes — activism. I would be more sympathetic to there arguments if they ever raised the specter of activist judge on a judge who had ruled in their favor. Activism is always found where the judge ruled against your side, not on your side itself.

(Wanna prove me wrong? List three cases that you think should be overturned because the judge was activist, but where what you personally liked — outcome-wise — had been the result.)

The will of the people? That always come second to the protections of the United States Constitution. If Californians passed a change to their constitution outlawing the private ownership of all firearms I hardly think these same objectors would be citing the ‘will of the people’ as a reason to not overturn the law. They would be right because the US Constitution enumerates the right to ┬ábear arms in the Bill of Rights.

Ahh, but people are fond of saying that any right they don’t agree with isn’t enumerated in the Bill of Rights and therefore is not a right at all.


I give you the 9th amendment to the Constitution and part of the Big Ten Bill of rights.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Certainly I consider the right to marry as an unenumerated right. It is not a privilege, it is a right that the government can restrict only with good cause. Where the state has a compelling interest. (Such as incest which produces deformed and disabled offspring a burden on the state and society.)

Judge Walker — a G.H. Bush appointee — found that the state had no compelling interest in restricting marriage to only mixed gender couples and that such restrictions violated the 14th amendment.

I applaud him.