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The majority of Americans oppose gay marriage.
The legislature of California enacted a law that says marriage is between a man and a woman.
But certain judges increasingly like to arrogate to themselves the ability to make the laws, rather than merely help ensure that existing laws are justly carried out. They don’t care what they people want or what laws the legislature has passed. Today a lower California court has ruled that gay marriage is just fine.
SAN FRANCISCO Gays and lesbians are entitled to marry under the California Constitution, a judge here ruled today in a decision that opponents to same-sex marriage vowed to appeal.
...The decision strikes down a provision of the state’s family law that limits marriage to “a man and a woman.”
If the majority of Americans don’t want it, too bad. If the legislature doesn’t want it, too bad. The liberal judge of this San Francisco court wants to force it on us.
His argument:
“No rational basis exists for limiting marriage in this state to opposite-sex partners,” wrote San Francisco Superior Court Judge Richard Kramer.
Is that the standard now? Judges don’t have to seek a basis for their actions in the Constitution? They can ignore public opinion, and the laws officially passed, and just go by their own personal feelings of what’s “rational?” This is a land that has thrived under the rule of law. Those laws are passed by legislatures, and the job of the courts is to see that they are justly enforced—not to make them.
Judge Kramer was elected. He is trying to write a law that will appeal to those who elected him, so as to get re-elected. But this law he is seeking to write would affect all Americans, not just those in San Francisco.
The election of judges works very well when judges do what they’re supposed to do, making sure that existing laws are justly enforced. It helps ensure that the local people involved in a dispute feel that justice is being carried out. But when a judge like Kramer arrogates to himself the power to strike down a state law, on the basis of what is most in the interest of those who elected him, it is a grave miscarriage of justice.
Judges are not supposed to make law. If we let them have the power to do so, a local judge in San Francisco can make decisions that affect, not just those who elected him, and whose favor he is trying to curry, but all Californians and all Americans.
Such judges are abusing their power, their authority, and the public trust. They need to get out of the law-making business. Or we need to look into ways to get some new judges.
More comments on this important issue, as well as links to responses from around the blogosphere, are here, via Wizbang.
Oddly enough, I consider myself fairly independent and somewhat conservative (having gotten more so as I've gotten older, gotten a family, gotten more responsibilities) - yet there's some things that just don't resonate with me as a 'cause'. Gay marriage is one of those - it's a big so-what to me. I see nothing wrong with it, as long as the same standards are observed as for 'traditional' marriages. You want to get married? Then to call yourself married you get a marriage certificate and go through a civil or religious ceremony - just as normal. You want to get divorced or dissolve the civil union, then follow the same procedures as a 'traditional' couple would need to follow. Set societal standards, and be done with it - make the standards the same all the way around. No special exemptions or cases.
I see it as a big plus for the legal industry. (grin)
J.
#3Stephen,
You make very good points. But the notion of a judge finding a right to gay marriage in the Constitution is absurd. No one doubts that the authors of the US, and CA state, constitutions were opposed to gay marriage. Therefore judges such as Kramer are not carrying out their duty of seeing that the intent of the Constitution is upheld. They are not illuminating an area that those authors had not considered. They are opposing the intention of those authors, of the people, and of the legislature. This error is in the service of an extremely Liberal judicial activism that seeks to overturn the will of the people and the laws of the legislature.
Are you arguing the courts, too, were wrong to deny interracial couples from marrying?
A very good question. I am not. This is a case of people assuming they know that gay behavior is the same as skin color, when that is not yet established by science, and may not be so.
I posted on this here:
No one yet knows what causes gay behavior. It may be genetic, in which case the arguments of gay rights activists have more in their favor.
It may, however, be the same thing—also not as yet identified—that makes people do all sorts of things that happen to be bad for them, like smoking cigarettes, losing large amounts of money gambling, getting addicted to cocaine and heroin, etc. etc. etc.
The mere fact of people doing an action does not in and of itself prove that the action is good for the people doing it.
It may be that in many cases, perhaps in the majority of cases, gay behavior is not genetic and is not in the best interests of those doing it. Should that be the case it is reasonable for society not to reward and encourage it—reasonable not only for society as a whole, but for the individuals in it as well.
...and here:
Larry Elder, with whom I agree on almost everything, was on the air the other day saying, why not permit gay marriages? What can it hurt? Shouldn’t people be permitted to do whatever they want as long as it doesn’t hurt anybody else? And these are the arguments made by most proponents of this change to our nation.
I have several responses to this.
Notice that the argument isn’t, “we know it won’t be bad for our society to encourage gay behavior.” Instead the argument is, “what can it hurt?” It’s an argument that says, “we don’t know if it can hurt, but let’s try it anyway.” It’s an argument from lack of information rather than presence of information.
Of course, there is some data available on the subject. In fact, through literal millennia of human history, societies have found that the good of society as a whole, requires them not to encourage gay behavior.
We’ve all heard the phrase, measure twice, cut once. The proponents of gay marriage are saying, “Don’t measure at all—and cut forever.”
Vik,
... the notion of a judge finding a right to gay marriage in the Constitution is absurd. No one doubts that the authors of the US, and CA state, constitutions were opposed to gay marriage.
I do not doubt, were they asked, the framers of the US Constitution would have balked at the notion of homosexual marriage. Same with the writers of the California Constitution. Unfortunately for them both, the framers did not write anything into the US Constitution about the idea of marriage. Later authors, however, did change the US Constitution, adding the Fourteenth Amendment, particularly the first section:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Whatever the intents, including the idea of marriage, of the framers of the US Constitution, their intents were more or less modified by this later amendment. For example, many of the framers did not intend on women, Indians and slaves being allowed equality under the law. Yet, despite their intents (or lack thereof), this amendment allows all persons born or naturalized in the United States, women, Indians and slaves, too, to expect equal treatment under the law. Add the statement "No state shall..." and we see that any of the United States must abide by this amendment, even if contrary to the wishes of the majority of the state, even if they add provisions to their state constitutions, like California did.
These are, for good or ill, part of the unforeseen and unintended consequences of the Fourteenth Amendment.
You wrote,
This is a case of people assuming they know that gay behavior is the same as skin color, when that is not yet established by science, and may not be so.
Many do argue this. I do not. Regardless of whether homosexuality is biological, there are other points that, in my opinion, have greater merit and bearing on the issue of homosexual marriage. Should adults be allowed to consent to marriage between one another? Does this include adults of the same sex? If a person's religion allows marriage to another person of the same sex, should the state be allowed to abridge that person's religious doctrines? Should the state even be involved in the institution of marriage beyond the written contract between the marriage partners? I see no need to bring the biological basis of homosexuality into the argument.
By the way, Vik, you mentioned earlier,
This error is in the service of an extremely Liberal judicial activism that seeks to overturn the will of the people...
I am unsure what this has to do with Liberalism. Or with activism. Afterall, courts generally make rulings after cases have come to them, not before. The courts also are made of judges liberal, conservative and moderate, all of whom I should like to think are fair-minded individuals who do not go out of their way to find cases with which to assert their political opinions. While people may rightfully blame Liberals (like yours truly) for trying to subvert the legislative process with appeals to the courts, I do not see the need to drag an institution through the mud that is merely trying to do its job.
stephen
#5Stephen, I think you make good points.
Whatever the intents, including the idea of marriage, of the framers of the US Constitution, their intents were more or less modified by this later amendment.
However, no one doubts that the authors of this later amendment also opposed gay marriage.
These are, for good or ill, part of the unforeseen and unintended consequences of the Fourteenth Amendment.
By your view, laws against drug use, polygamy, and incest all must be struck down.
There are many things some people want to do that are bad for them. Striking down laws against such behavior is harmful to all of us. And if any such laws are to be struck down, it must to be done according to the will of the people and duly passed legislation, not, in opposition to those things, by activist judges seeking to make law from the courtroom.
I see no need to bring the biological basis of homosexuality into the argument.
Very good. Societies have for millenia felt that gay marriage is not in the best interest of the public. If you drop out the biological argument you have almost no case with which to oppose the millenia-long judgement of mankind.
I am unsure what this has to do with Liberalism. Or with activism. ...I do not see the need to drag an institution through the mud that is merely trying to do its job.
Judges who are elected by, and seek reelection by, a pro-gay local constituency, and who seek to enforce the views of that local constituency on the nation, through a "finding" of a right to gay marriage in the Constitution, are reasonably viewed as going beyond the rightful use of their authority.
Vik,
By your view, laws against drug use, polygamy, and incest all must be struck down.
I would argue that certain laws probably ought to be struck down. For example, I do think the federal government overstepped its authority in outlawing certain drugs. Congress has, since almost its inception, taken liberties with the Commerce Clause of the US Constitution to expand its authority. How it has the power to make unlawful the growing and smoking of marijuana for personal, non-interstate use is beyond my poor mental faculties.
While the judiciary may be used to strike down laws, I personally think non-legislative methods, followed by legislative methods, are better than judicial methods. I bring this up before quoting you:
Societies have for millenia felt that gay marriage is not in the best interest of the public. If you drop out the biological argument you have almost no case with which to oppose the millenia-long judgement of mankind.
I have no biological case, true, but genetics is not the end-all and be-all of matters like this. Slavery, too, is a time-honored tradition, a tradition still practiced in many parts of the world, and there is not a biological argument against it. Slavery has cut across racial and cultural lines, and does so today.
There are, however, economic, religious, ethical and other reasons against enslaving others.
As I said previously, I needn't delve into genetics to speak for or against homosexual marriage. For example, the First Amendment of the Constitution says this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...
Hypothetically, in my faith homosexuals may marry. In fact, when we find two men or two women love one another want to marry, we encourage them to marry. Shall Congress have the power to say what we can or cannot practice in our religion? Is there a compelling interstate interest in preventing members of my congregation from marrying?
In other words I have a religious case for allowing homosexual marriage.
Would you prefer an economic reason for allowing this? If same-sex couples are allowed to marry, they can, like heterosexual couples, share the burdens of growing old. Sure, the homosexual couple can seek a lawyer and tie themselves together in a legal fashion, giving one another power of attorney, giving permission to one another to access records during medical emergencies, and so on, but how is this economically efficient? Why should they have to pay two, five, ten times the legal fees heterosexual couples pay to get not half as many of the same legal rights? As a married couple they would benefit from the Bush tax cuts, meaning they would have more money to spend as they see fit, etc.
Shall I continue with ethical and other reasons?
I am not saying time-honored traditions shouldn't bear some weight for or against certain ideas, but I do not think any tradition ought to be unquestionable. I've digressed enough.
I think the legislative process ought to be used to address this question. In fact, it was and is being used in a number of states, for and against. I think each state ought to make up its mind. Of course, if a state decides to allow same-sex marriage, what then?
An offtopic aside - This brings to my mind the state of Oregon and the forces brought to bear on the question of physician-assisted suicide. As I recall it was not Liberals who tried to overturn the voter-approved "Death with Dignity Act". It makes me wonder how comfortable conservatives really are with legislation they don't like. Is this unwillingness to use the courts to overturn the law a moral imperative, or a political maneuver?
stephen
#7It sounds like we are almost in agreement about Kramer's actions in this case. I say he was totally out of line, and you say, "While the judiciary may be used to strike down laws, I personally think non-legislative methods, followed by legislative methods, are better than judicial methods." So, we're pretty close to being on the same page in this regard.
Hypothetically, in my faith homosexuals may marry. In fact, when we find two men or two women love one another want to marry, we encourage them to marry. Shall Congress have the power to say what we can or cannot practice in our religion? Is there a compelling interstate interest in preventing members of my congregation from marrying?
In other words I have a religious case for allowing homosexual marriage.
Well, I guess one can call anything a religion. This argument could be used to justify polygamy, coke-dealing, even murder. This makes the point, that just because something's called a religion, is no reason to require that all its practices be considered legal.
If same-sex couples are allowed to marry, they can, like heterosexual couples, share the burdens of growing old. Sure, the homosexual couple can seek a lawyer and tie themselves together in a legal fashion, giving one another power of attorney, giving permission to one another to access records during medical emergencies, and so on, but how is this economically efficient?
If it's bad for the people who are doing it, and bad for society, society should not encourage it. For millennia human civilizations have found that gay behavior is bad for society. As you reasonably point out, this does not prove that gay behavior is bad for society; however, it is a strong argument that that may be the case.
Vik,
Well, I guess one can call anything a religion. This argument could be used to justify polygamy, coke-dealing, even murder. This makes the point, that just because something’s called a religion, is no reason to require that all its practices be considered legal.
Religions have promoted many ideals and activities, including all three you cite above. Polygamy still enjoys a wide popularity among Muslims, certain branches of Mormonism and some tribal societies of Africa. How these acts lessen their religiosity is unclear to me. I also fail to understand how consentually loving someone of the same sex equates to willfully killing another, unconsenting human being.
One of the consequences of the Establishment Clause is the founding and flourishing of new religious movements. I mentioned Mormonism above; Pentecostalism, Jehovah's Witnesses, and the Church of Christ Scientist also have had their beginnings here in the United States. It is not a stretch to imagine new religions that embrace homosexuality will be founded here, too.
I doubt they will be any less religious.
If it’s bad for the people who are doing it, and bad for society, society should not encourage it. For millennia human civilizations have found that gay behavior is bad for society. As you reasonably point out, this does not prove that gay behavior is bad for society; however, it is a strong argument that that may be the case.
I agree that many societies have frowned on open homosexuality. I can only think of two societies where it flourished - Ancient Greece and Edo-period Japan. I cannot see anyone stating either of these societies were uncivilized, or that they fell apart because of homosexuality. Then again, people have strange ideas...
And we mustn't forget the West. Homosexuality has been tolerated in various parts of the West for the last hundred years, and in most of the West for the past twenty, without ill effect. The case that homosexuality is bad for society gets weaker by the day.
We have gone beyond the scope of the article, I fear. While we disagree on the effects of homosexuality, and perhaps on its morality, we seem to agree on allowing voters and their representatives the right to decide. I will continue to champion the cause of homosexuals.
stephen
Vik,
One job of the courts is to see laws are justly enforced. Another job of the courts is to act as arbitrar in controversies between parties. In this case the parties are certain California citizens and the state of California. The state, if it is in the right, will be able to enforce its laws, though it may take a ruling by the SCOTUS.
You'll note the Judge made a ruling based on his interpretation of California law and of the Fourteenth Amendment of the US Constitution:
He cites Article 1, section 7 of the California Constitution, which states:
His ruling, so far as it goes, applies only to California. It does not bind the rest of the United States, nor the Ninth Circuit district. For it to apply elsewhere the ruling will need to be appealed upwards towards the SCOTUS.
As for the bit about ignoring both public opinion and established law, judges have been doing this for a long time. At least since fifty or so years ago when California courts also nixed the idea that people of different races couldn't get married. Are you arguing the courts, too, were wrong to deny interracial couples from marrying?
stephen