Perry v. Schwarzenegger: A Modern Roe v. Wade (Updated and Bumped)

Are judges required to simply interpret the Constitution, or do they have the inherent power to unilaterally amend it if they don't like portions of it? Unfortunately, there are today far too many judicial activists on the bench who seem to believe the latter. It is the very height of arrogance. And indeed, judicial activism has proven one of the most destructive forces in our society over the past century.

Prior to yesterday, the seminal example of this judicial activism run amok was Roe v. Wade, where Justice Harry Blackmun, pointing not to any right found in our Constitution, but rather to a "penumbra" surrounding those rights, declared abortion a Constitutional right. Even Ruth Bader Ginsburg criticized that decision. And indeed, it has proven a decision that has distorted our politics and political discourse for the past forty years. Now we have a decision equally ignominious.

That 137 page decision was rendered yesterday by a gay U.S. District Court judge, Vaughn R. Walker, in the case of Perry v. Schwarzenegger. At issue was whether the federal Constitution protects the right of homosexuals to marry. In 2000, California voters overwhelmingly approved Proposition 22, a law declaring that California would only recognize and sanction marriages between a man and a woman. Gay rights activists, having lost in the court of public opinion, turned to a sympathetic state court system in order to override the will of the people. In 2006, the California Supreme Court agreed with the activists and invalidated Prop 22 on state Constitutional grounds. In 2008, over 7,000,000 Californians went to the polls to vote for Proposition 8, overriding the Supreme Court and amending California's Constitution so as to provide for marriage only between a man and a woman. Yet again seeking to thwart the will of the people of California, gay activists brought the Perry case before the federal Court, arguing that the equal protection clause and the due process clause, both of the 14th Amendment, give gays a Constitutional right to marry.

Any contention that those clauses support a right of gays to marry is ludicrous. It is beyond any contention that the people who drafted our Bill of Rights and, close to a century later, the people who drafted our 14th Amendment, did not consider even homosexual relations to be a right of American citizens, let alone gay marriage. To the contrary, homosexuality was then subject to criminal sanction. As I have written previously:

The historical record clearly establishes that, at the time the Bill of Rights was approved and the near century later, when the 14th Amendment was approved, our government exercised unchallenged power to restrict homosexual conduct. The record shows "20 sodomy prosecutions and 4 executions during the colonial period" and numerous records of prosecutions for homosexual sodomy thereafter. To quote Justice White, writing regarding homosexual sodomy laws in the 1986 case of Bowers v. Hardwick:

Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. 5 In 1868, when the Fourteenth Amendment was [478 U.S. 186, 193] ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. 6 In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia [478 U.S. 186, 194] continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

Whether one supports or contests gay marriage is wholly immaterial to how this case should have been decided. As a matter of Constitutional law, the fact that protecting the right of gays to marry was unambiguously outside the original intent of those who drafted and the Bill of Rights and those who drafted the 14th Amendment should have been the alpha and omega of the federal court inquiry. If the Constitution is not held to the meaning of the original drafters, then it is a meaningless document, becoming mere cloth to wrap around whatever social policies an unelected judge wishes to foist upon America as the supreme law of the land. Indeed, it renders a nullity those provisions in the Constitution that specify the sole conditions under which the Constitution can be amended by a majority of the people of the United States. That said - and notwithstanding prior court rulings that comprise existing activist precedent on the issue - gay marriage is not an issue of Constitutional law for the Courts, but rather one of social policy for the people of the fifty states and their state legislatures to decide.

It matters not a wit the evidence that Judge Walker heard at trial, nor his credibility determinations, nor his copious findings of fact - almost all of which are so ridiculously one sided as to read like a polemic drafted by the Gay Activists Alliance. The Court never should have reached the rational basis test. The unvarnished truth is that this is judicial overreach and judicial activism on a scale at least equal to that of Roe v. Wade. And given that this is an issue that deeply divides the nation, the Judge's decision to take the matter out of the hands of America's electorate promises to be equally as destructive.

So how did Judge Walker choose to invalidate the will of the people of California and get around the reality that nothing in the Constitution supports gay marriage? This paragraph from his order provides a good exemplar of his reasoning:

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. . . . Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

Let's parse that. ". . . [A]n evolution in the understanding of gender rather than a change in marriage?" That is incoherent. Is he trying to argue that what he is announcing is not a new right? If so, it is an utter canard.

As to the evidence of historical purpose, this judge is deliberately ignoring - and by implication invalidating - the role of religion and the historical treatment of homosexuality as a matter of social policy not merely in our country, but throughout much of the world since the dawn of written history. That is blatant intellectual dishonesty.

As to the "artifact of time," that is simply the Judge's way of tactfully saying that he does not agree with the original intent of the drafters of our Constitution, that he could care less what Californians think as to what the appropriate social policy of their state should be, and that he, by fiat, is choosing to unilaterally amend our Constitution.

At any rate, after several more pages of similarly suspect reasoning coupled with yet more bald pronouncements, Judge Walker concluded that the people of California could not possibly have acted rationally when they decided that marriage should be just between a man and a woman. To put that in perspective, that means the score on whether California acted rationally was 1 unelected federal judge versus 7,001,084 California voters. When one unelected judge trumps the will of seven million plus voters, what does that say about how dysfuntional judicial activists have made our legal system?

This is judicial activism run amok. This man is a judge charged with interpreting the Constitution. He is not imbued with the power to amend our Constitution per his whim. At a minimum, this judge should be impeached and removed from the bench. Tarring and feathering is optional thereafter, though highly recommended as an object lesson for the rest of our judicial activists occupying the bench.

Update: I do not address in this post whether the Judge, being himself gay, should have recused himself from this case. That said, it has been clear from day one of this trial that the judge was wholly biased in favor of the gay plaintiffs. As summarised by Ed Whelan:

Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Walker’s actions, taken together, have only one sensible explanation: that Walker has been hellbent from the outset to use the case to advance the cause of same-sex marriage.

Go to the link for the specifics. If the defendants in the case do not figure out how to raise that issue on appeal, they are foolish indeed.

Update: Chris Wallace interviewed Ted Olson on Fox News Sunday this morning. Olson is the attorney for the plaintiffs in the Perry case. Wallace was clearly unprepared to argue the matter with Olson. You can see the entire interview here. Olson and Wallace had the following exchanges:

"Where is the right to same-sex marriage in the Constitution?" asked Wallace.

"Where is the right to interracial marriage in the Constitution, Chris?" replied Olson.

"The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens. So you call it interracial marriage and then you could prohibit it, no? The Supreme Court said no. The same thing here," explained Olson

Unfortunately, that response stymied Wallace. It was a disingenuous example. The entire legislative history of the 14th Amendment, passed by Congress in the immediate aftermath of the Civil War, establishes that the drafters intended by that amendment that blacks and whites should be treated with complete equality and without regard to skin color. If they are equal, then it is completely in keeping with the intent of the drafters that intermarriage be allowed. Conversely, to dissallow interracial marriage would be discrimination based on skin color. The fact that it would discriminate equally against both whites and blacks does nothing to solve the fatal fact that it is discrimination based on skin color - a clear violation of the original intent of the drafters of the 14th Amendment. That is, as I pointed out above, the polar opposite of the situation with gay marriage.

(Update to the Update: At Legal Insurrection, Prof. William Jacobson also points out another obvious flaw in Olson's argument - that every case upon which the Supreme Court found that marriage is "fundamental relationship" involved traditional marriage between a man and a woman, as opposed to any sort of other marriage - i.e., polygymous, etc.)

Wallace then asked Olson how he defined "judicial activism." Wallace helpfully joined in with the asinine quip that it means that a judge has issued a ruling that you don't like. Olson then chimed in:

"The judge after hearing three weeks of testimony and full day of closing arguments and listening to experts from all over the world concluded that the denial of the right to marry to these individuals in California hurt them and did not advance the cause of opposite sex marriage," Olson continued.

"This is what judges are expected to do. It's not judicial activism. It's judicial responsibility in the classic sense."

What utter horse manure. This judge, at the urging of Olson, unilaterally amended our Constitution. To call that anything other than judicial activism "in the classic sense" is pure prevarication.

And finally, Olson finished the interview by calling gay marriage a "conservative value." What a supremely arrogant ass. Is Olson so full of himself that he now sees fit to define what all conservatives should think? I dare say that millions of conservatives don't like Olson declaring what their values are, nor having gay marriage jammed down their throat by a judiciary that is making of social policy whatever they want it to be as a matter of Constitutional law. Indeed, every American should be spitting blood over this.

Prior to this case, I was fairly neutral on gay marriage and quite willing to accept it should it have been subject to a state wide referendum. Not so today. The unbelievable arrogance of our Courts and the misuse of our legal system by the left to work fundamental changes to our society that they cannot get through the ballot box has gone too far by leaps and bounds. And the fact that this was done not on the basis of polls but rather a full election wherein seven million plus Californians voted to amend their Constitution makes this an outrage that dwarfs even the Roe v. Wade decision. If this stands, then we are no longer citizens of a United States governed voluntarily within the framework of a Constitutional covenant, but rather subjects ruled by the police power of a government every bit as imperious as the one we got rid of over two centuries ago.

Update: This issue has spawned many opinions. Here are links to some of them:

Anchoress: Not surprised. The judge's ruling makes sense "if one is peering through the narrowed prism of stringently secular law, and reducing marriage to a sort of contractual partnering."

Gay Patriot - A sloppy legal decision that may well "further divide the nation on gay marriage and embolden social conservatives." (Good legal analysis)

Powerline - "Conservatives have long said that the day would come when liberal judges declare the Constitution unconstitutional. That happened today, . . ."

Newt Gingrich - "Judge Walker's ruling overturning Prop 8 is an outrageous disrespect for our Constitution and for the majority of people of the United States who believe marriage is the union of husband and wife."

Another Black Conservative - Gay marriage will ultimately be accepted by society. This attempt to push it down our throats today may well backfire for gay rights activists.

Left Coast Rebel - Why should I care?

Outside The Beltway - The Judge made the right decision.

DaTechGuy's Blog - "Once again a court discovers new obligations that never existed before…"

Sweetness & Light - "The will of the people as expressed by the votes be damned. We are now a nation ruled by black robed clerics."

Vox Popoli - "at the end of the day, it's little more than one more check in the societal collapse column."

Don Surber - "Once again, the people of the United States are viewed as ignorant bigots by a disdainful court of lifetime-appointed political hacks."

Ace of Spades - "Judge Walker -- Thanks for the extra 7% turnout in November!!!"

Barking Moonbat EWS - "Take this judge out and hang him before he allows transgendered bestiality and grants sheep and goats equal rights."

Joshuapundit - "From a political standpoint, this is yet another disaster for the Democrats, as there is very little actual voter support for same sex marriage, even in a Blue state like California."

Snapped Shot - "This is just another slap at the Christain religion that does nothing but discriminate against us and this nation."

Sister Toldja - Against gay marriage

The Foundry - "an example of extreme judicial activism."

Excitable Andy Sullivan - "The compelling logic of the case reaches what can only be called an apotheosis."

The Other McCain - "These silly Conservatives need to refrain from restraining the Progressive Golden Age right now!"

Rhymes With Right - This "ought to make your blood boil."

The Colossus of Rhodey - Based on the judges reasoning, "what is to prevent some judge from claiming "The number involved in a relationship no longer forms an essential part of marriage"? Or some other manifestion thereof?"

The Volokh Conspiracy - This is 'maximalist' decision that invites a sweeping reversal that could well set back the gay rights movement.

Hot Air - So, Justice Kennedy, what is your decision?

Stop The ACLU - "Being openly homosexual, Walker would have recused himself had he any respect for the proper role of the judiciary. But under a regime of liberals, the judiciary has a new role: to ram through obscenities so monstrous that not even Nasty Pelousy’s Congress could pass them."

NRO - "From his decision to have a “trial” of the “facts” in the case rather than proceed straightaway to legal arguments about the constitutional issues (a choice that surprised even the plaintiffs’ attorneys) to his attempt to stage a nationally televised extravaganza (brought to a halt by the Supreme Court) to his unconcealed bias in favor of the plaintiffs in virtually every aspect of the proceedings (ably summarized by NRO’s Ed Whelan here), Judge Walker has been preparing us for a baldfaced usurpation of political power for quite a while."

Legal Insurrection - "There is a certain lack of reality to Judge Walker's fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society."

Dean's World - "In our system of government, policy questions belong to legislators and voters, and judges are supposed to be limited to legal questions. Based on what I’ve read so far of today’s ruling, Judge Walker . . . appears to be ruling that Prop 8 is unconstitutional because he disagrees with the correctness of the state’s reasons for thinking Prop 8 was a good idea. I disagree with those reasons, too, but it appears the court is trespassing on turf rightly reserved for the democratic process."

Bluegrass Pundit - "Some things, such as new technology, may not have been envisioned by our founding fathers and could need interpretation by the courts. Gay marriage isn't one of them."

John Fund at WSJ - Based on Justice Kennedy's activist decisions in Romer and in Lawrence, it is likely he will be the deciding vote to uphold the district Court decision. And while Kennedy has long been a swing vote, he seems to embrace activism on numerous social issues.

Instapundit - has a roll-up

(H/T Instapundit & Memorandum)

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