Personally, I’m not a fan of the USA. I certainly don’t go out of my way to keep track of their news and public opinion. However, an issue is being debated there, with a lot of to-ing and fro-ing, that really cannot be ignored by anybody the world-over.
The state of California, under the leadership of Governor Schwarzennegger, legalised gay-marriage on 16 June 2008 through the intervention of the Supreme Court of California. However, a public referendum on 5 November 2008 passed Proposition 8, which declared that “only marriage between a man and a woman is valid or recognized in California”, thereby effectively removing the provision for same-sex marriage in the Californian constitution.
Unfortunately, depending on your opinion, that determination of the majority of Californian voters was trampled upon by Federal Judge Vaughn R. Walker, who declared the ban to be unconstitutional from the standpoint of the federal constitution and, on 12 August 2010, lifted the ban. However, it turns out, the 9th Circuit Court of Appeals has put a stay on same-sex marriages until an appeals process has been completed, sometime, hopefully, before the end of this year.
Now, I don’t understand the intricacies of the US political and legal system, but I do understand how democracy works. Politicians are duly elected by the voting public and are thus mandated to both maintain and develop the rule of law. A majority of Californians voted to ban same-sex marriage in that state —that is the democratic process successfully at work. However, the legal process intervened to overturn the voter-approved amendment to that state’s constitution.
Judges are necessary to the application of the rule of law and the protection of a society’s citizens. However, judges are appointed by politicians; they are not elected. They do not necessarily represent the majority opinion of the voting public. They are appointed to interpret and apply the law fairly for all citizens. This did not happen in the case of Proposition 8.
Unfortunately, Judge Walker allowed his own personal agenda to colour his interpretation of the law of California and he overturned the voter-approved ban on same-sex marriage. The following article, by Frank Turek, outlines the fallacies in the rationale presented by Judge Walker for his ruling. I hope that you too will find it illuminating, as the very same thing may soon be happening in Australia.
Read :: “False ‘Facts’ on Gay Marriage” by Frank Turek.
By that reasoning the courts were also wrong in their decision in Brown v. Board of Education (because the will of the people was to continue segregation). It would also be appropriate for majority-Muslim countries to ban and persecute Christianity, and the anti-bikie laws would be perfectly OK as long as 50.1% of people support them.
It is entirely the place of the courts to overturn decisions when a majority oppresses a minority, as Judge Walker felt was the case here. Democracy most certainly does not mean that the majority rules to the exclusion of the rights of the minorities.
The “judges are not elected” argument is a crock. It is because they are not elected that they play an important role. They are there to interpret the law – including the constitution and any common law principles – and render judgements without feeling compelled to follow the opinion on the mob.
And in the California case, the elected officials did support gay marriage – the effect of Judge Walker’s decision is to state that a small majority (less than 53%) do not get to change the constitution to prevent such laws from being passed.
If you really believe in the will of be majority, then polls indicate that the majority of Australians support gay marriage. Why then, in this democracy, are the major parties opposing them? Because a minority (in marginal electorates) oppose them. Democracy is lot more complex than “whatever most people want”.
Regardless of your view on gay marriage, I really don’t think you want to be argue that judges should not overturn laws that they find to be discriminatory and unconstitutional.
Thank you for your comment, Tim! I like that someone actually reads my blog, if only occassionally, and takes the time to respond.
If I’ve generalised inappropriately, I apologise. However, I still stand with my opinion against the ability of non-elected judges to circumvent a legitimate democratic process. Let’s be careful what court/constitutional decisions we are comparing. I can’t speak to the Brown v. Board of Education case, although I can say that I’m indeed happy with the outcome, if the outcome was an overturning of segregation.
As for the religious persecution issue, the comparison is not fair as Christians are not being protected from discrimination and violence under the law of those countries. Now, as for the so-called anti-bikie laws, those laws, under the guise of controlling the violence and criminal activities of alleged gangs, set-up the trampling upon of the rights of all Australian citizens. The motorcycle clubs are legitimately opposing those laws in the public forum and in the courts.
Similarly, Proposition 8 was legitimately established through a public referendum. Even though the elected officials personally support same-sex marriage, as elected officials they are to represent the majority of their constituents. Judges do not have that obligation. Proposition 8 demonstrated that the elected officials were not representing the majority opinion when they permitted same-sex marriage in the first place.
In this case, who is being oppressed? Who is not being afforded their rights? Same-sex couple do not have a “right” to marriage because the definition of marriage does not afford them that right. Marriage is not an inalienable right as it is, at its heart, a religious institution. Insofar as the state takes over that institution, then the definition of marriage is open to democratic processes, which is exactly what happened legitimately in California.
If read the article, to which I referred, it very ably, as far as I can tell, challenges the rationale employed by Judge Walker in support of same-sex marriage. I, like the author, certainly challenge his rationale. He, in my opinion, does not adequately defend the “right” of same-sex couples to marry. I will concede that having judges interpret and apply the law, as a ‘check and balance’ to law-making of politicians, is a good thing. But Judge Walker is not protecting the law in this case, but stretching it far beyond it’s legitimate boundaries to further his own agenda.
I don’t put much stock in polls, as they really depend on the pollster and the subsequent interpretation of the results by the media. If the major parties are not representing the majority opinion by defending the current definition of marriage, then the case should be put to a referendum and/or the opinion of those parties should be changed by overthrowing the leadership of those parties through stacking the membership. That is the democratic process that proponents of either side of the debate on the the definition of marriage have available to them.
Since I can’t agree that same-sex have a right to marriage and I believe that Judge Walker manipulated the political-legal process in overturning the ban of Proposition 8, then I have to stand by my original opinion that a travesty of law and justice has been perpetrated in the US in this case. However, I will concede that this is not a simple case and I too dislike the diatribe from both sides, especially the so-called Christian constituency.
Your argument comes down to the fact that you want Judges to overturn laws that you believe are unjust, but upholds ones that you believe are just. And that’s fine, but it then places you as the judge, which is no more democratic.
You say that same-sex couples don’t have the right to marry, but that beg’s the question. The definition of marriage doesn’t allow them that right because Prop. 8 said so. But the question is whether Prop. 8 is constitutional. In the absence of Prop. 8, they do have the right to marry – that was the legal situation before Prop. 8 was instituted.
Similarly black children didn’t have the right to attend interracial schools until after Brown v. Board of Education, but the court found that, constitutionally, they should have. The law was wrong, and the judge overturned it.
You can argue that Judge Walker’s legal decision is incorrect, I think that’s a reasonable position to take (I don’t agree, but it really does come to down to opinion). But your argument is that a judge should not go against the will of the people, even if he determines that their will is unconstitutional. I completely reject that view.
Judge Walker concluded that Prop. 8 is unconstitutional, so he threw it out. That is exactly the right thing for him to do, and our democratic society depends on his ability to do that.
I’m happy to debate whether Prop 8. really is unconstitutional, but I can’t accept that a Supreme Court Judge should allow the people to institute a proposition that he considers to be unconstitutional.
I didn’t say that I wanted judges to overturn laws that I believe are unjust; only that I concede that judges are a good ‘check and balance’ in the system.
Hold on, you need to take the same-sex marriage in California debate back before Proposition 8. The elected officials, who were supposed to represent the majority opinion and, yes, protect the rights and livelihoods of all citizens, made it legal for same-sex couples to marry, but Proposition 8 demonstrated that they were wrong in doing so, in that the majority of the voting population of California did not support this change to the law. Yes, you’re right that the issue with Prop 8 was whether it was constitutional, but Judge Walker, in my opinion, did not adequately demonstrate that it was unconstitutional because his judgement was clouded by his apparent personal agenda.
Proposition 8 sought to clarify the definition of marriage in the law, and clarification is always a good thing, isn’t it? No, judges don’t have a right to go against the will of the people; there’s is to interpret and to apply the law. If the law needs clarification, then they force the issue, which is a good thing. Proposition 8 clarified the issue, yet Judge Walker tried to tell the people that they were wrong. I can’t abide by that.
In the end, this debate will force an amendment to the federal constitution of the US; that is their democratic process. But that amendment will come through the elected representatives, not the non-elected judges.
I could also add that, in this whole process, it is easier for a judge to upset the political side of the process than it is for a politician to clarify the legal side of the process. In other words, a judge can more easily force a change in the laws than a politician can amend the laws.