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  bear 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.

Poppycock.

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.

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2 thoughts on “The California Prop 8 Ruling”

  1. I think there is an excellent chance this court’s decision will prove a temporary and pyrrhic victory to the cause of same sex marriage (SSM).

    http://en.wikipedia.org/wiki/Pyrrhic_victory

    There is an excellent chance this judgement will be overruled by the U.S. Supreme Court when they finally hear the case. Defenders of SSM will end up taking two steps back for this one step forward. That is the danger whenever challenging a popular law in the courts.

    From the discussion of the case over at volokh.com, I understand the decision is 138 pages long. I don’t intend to read it for myself, and so I am depending on what others are saying about it.

    One writer describes it as a “maximalist” decision. In other words, the judge went far beyond merely striking down proposition 8.

    With the groundwork laid by this judge, I don’t see why a bi-sexual person should not be able to marry two people of different genders at the same time. After all isn’t that discriminating against bi people and putting gays above them if you deny bi marriage? Support bi marriage!

    That should make those Mormons who practice polygamy happy, since they may eventually be able to come out of the closet.

    I can think of two cases off the top of my head of judicial activism which created outcomes I favor. This case striking down Proposition 8, and Roe v Wade. Judicial activism, ‘living constitutionalism’, and other such tripe is the desire to remove the Constitution, and replace it with the will of unremovable judges.

    If someone doesn’t like what the Constitution says, then amend it God Damn it, Don’t ignore it! It’s not the Holy Bible, It’s been amended twenty seven times already!

    While some “progressive” judges are discovering very interesting rights in the constitution, such as to abortion and gay marriage, nowhere is there any specific mention of such rights. Yet those same philosopher kings have nullified the 10th Amendment, and also come within a razor’s width of nullifying the 2nd Amendment. They may yet nullify the 2nd. And these wannabe kings have done this despite the clear wording of the 2nd and 10th which any ordinary citizen can find in the Constitution.

    California is one of the few states lacking a constitutional provision for the Right to Keep and Bear Arms. This is one reason why the crusade against guns has advanced farther in California than virtually any other part of the nation. But even in states with a RKBA provision, our would be kings have nullified the right in some states, such as Colorado and Hawaii.

    Those kings still hope to do that yet with the U.S. 2nd Amendment, while at the same time defending SSM and Roe v Wade. I can’t think of a better way to destroy the legitimacy of the Constitution and the Courts than to tie the law into knots with such sophistry. Mysterious rights good, clearly printed rights bad!

    And while I am a firm supporter of the U.S. 9th Amendment, and even California has a similar provision, try using it to stop government over-reach. It has even less practical restraint on government than the 10th Amendment does nowadays.

    In theory I could use my non-enumerated California Constitutional rights to protect my Right to Keep and Bear Arms. But I’ve got better common sense than to try to put such theory into practice! Some one else can martyr themselves for the cause.

    I’ve seen how those “progressives” operate.

    1. There is an excellent chance this judgement will be overruled by the U.S. Supreme Court when they finally hear the case. Defenders of SSM will end up taking two steps back for this one step forward. That is the danger whenever challenging a popular law in the courts.

      From the discussion of the case over at volokh.com, I understand the decision is 138 pages long. I don’t intend to read it for myself, and so I am depending on what others are saying about it.

      I don’t have enough detail legal knowledge to predict SCOTUS’s final result, but I know that there are people predict easy defeat and easy victory and some saying it will all come down to Kennedy. On that we’ll have to wait and see.

      With the groundwork laid by this judge, I don’t see why a bi-sexual person should not be able to marry two people of different genders at the same time. After all isn’t that discriminating against bi people and putting gays above them if you deny bi marriage? Support bi marriage!

      That should make those Mormons who practice polygamy happy, since they may eventually be able to come out of the closet.

      To those who bring up the specter of group marriage I say so what? What compelling state interest is there in who or what number of people marry each other? If this decision caused that results my reaction would be ho-hum. (And if you had not read the decision I’m not sure you could authoritatively say that group marriage is a likely result.)

      I can think of two cases off the top of my head of judicial activism which created outcomes I favor. This case striking down Proposition 8, and Roe v Wade. Judicial activism, ‘living constitutionalism’, and other such tripe is the desire to remove the Constitution, and replace it with the will of unremovable judges.

      So I ask for three examples, you produce two, one of which is the case in question. Also as someone who considers himself ‘pro-life’ you are in favor or legalized abortion? That’s a curious ‘pro-life’ stance.

      If someone doesn’t like what the Constitution says, then amend it God Damn it, Don’t ignore it! It’s not the Holy Bible, It’s been amended twenty seven times already!

      Personally I like a very wide interpretation of the U.S> Constitution on individual rights and a very narrow one of government powers. I support the Heller v DC and the MacDonald v Chicago cases. I think those who try to argue that the 2nd amendment is not an individual right.

      And while I am a firm supporter of the U.S. 9th Amendment, and even California has a similar provision, try using it to stop government over-reach. It has even less practical restraint on government than the 10th Amendment does nowadays.

      But this decision falls nicely into individual liberty being protected by the 9th amendment. Walker has basically stated that Marriage is a right (Via the 9th amendment) and that restricting it to mixed-gender couples only violates two aspects of the 14th.
      Do you not think marriage is a right under the 9th amendment?
      If so do you support that the government is empowered to restrict with subject to compelling interest who a citizen may marry?
      My answers are Yes and No.
      Better yet what sorts of rights should I expect to be found under the 9th amendment.

      I’ve seen how those “progressives” operate.
      And I have seen how those ‘conservatives’ operate. They preach a fine game on individual rights and state right until a state does something that they consider immoral and then it’s all about the feds telling the states what to do. We’ve seen this with State loosening Marijuana laws, with Assisted Suicide, DOMA, and of course Terri Schiavo.

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