The federal judge who overturned Proposition 8 Wednesday said the ballot initiative that banned same-sex marriage was based on moral disapproval of gay marriage and ordered the state to stop enforcing the ban.
U.S. District Chief Judge Vaughn R. Walker, in a 136-page ruling, said California "has no interest in differentiating between same-sex and opposite-sex unions."
The decision is here (note: PDF) should you want to read it. Although I know it's damned near impossible to set aside the question of gay marriage generally, I'm more concerned about the following points:
- As I've mentioned recently, it's a dangerous game when a single individual who has lifetime tenure and is essentially unaccountable to anyone, sets aside the express will of legislatures, or in this case a referendum of the people of a state. While this decision will work its way through the rest of the 9th Circuit and on to the Supreme Court, federal judges have far too much power over public policy. Gay marriage advocates might cheer the result, but there will come a time when an issue they hold dear is decided adversely.
- There's also a very important question that needs to be settled -- does state law mean anything, or does federal law (or in this instance the interpretation of a single federal official wearing a judicial robe) trump all state law? This is more than a statute passed by a legislature -- this was an amendment to the California state constitution that was passed through the proper channels. One would think that a court would give great deference to any law that is passed in this manner. Apparently not.
- We are in a period of governmental overreach and this judge's decision, which tosses aside the considered wisdom and expressed wishes of a large majority of Californians, is part of a very disturbing trend involving untrammeled government. There's going to be a backlash and it's not going to be a happy one.
- Judge Walker clearly hasn't learned a damned thing from the 37-year aftermath of Roe v. Wade. One of the reasons that we have a larger culture war in this country is that we have had far too many decisions imposed via judicial fiat. There's a strong argument to be made that abortion would have eventually been legalized without Roe, in a slow but steady process in which the advocates of legal abortion won the hearts and minds of the general populace. In fact, this was the process we were seeing in several states regarding gay marriage, where gay marriage initiatives were passed by legislatures. Just as Harry Blackmun unleashed a terrible set of problems with Roe, Judge Walker has done the same.
One last thing -- as the clip from the Los Angeles Times notes, Judge Walker's ruling says that California "has no interest in differentiating between same-sex and opposite-sex unions." If that were true, there would have been no possibility for Proposition 8 to have passed. Yet it did pass. When we discuss California, we must mean the citizens of California, right? Based on the evidence that Prop. 8 passed, California must have had an interest in differentiating between same-sex and opposite-sex unions. If a federal judge can decide that the people of California don't know their own minds, we are at a point where the will of the people means nothing. That ought to concern everyone, regardless of their views on the question of gay marriage.
Cross-posted and comments welcome at Mr. Dilettante's Neighborhood.