One of the interesting points about American government is the balance in the federal constitution between democratic and non-democratic institutions.  It is, as was intended, a series of checks and balances on the power of too much democracy.  The Congress, the most democratic of the countries institutions at the federal level, is limited by the power of the judiciary, which has the ability to declare laws made by the Congress unconstitutional.  And, of course, there’s the Presidency.  But that’s not the subject of our discussion.  Today we are talking about the balancing between the powers of democracy and the powers the limit democracy.

The Congress is there to represent the will of the people, one step removed from actual rule.  State legislatures, and assemblies, are the equivalent. In some states, the people are able to express their will even more directly in the form of a referendum on the ballot.  A friend of mine in Oregon tells me that the referendum process there is so out of control that the ballot, which is mailed out to every voter, is so full of different voter initiatives that it takes several hours to vote, if the voter actually reads all the material provided to educate them on the referendum. In Utah, right now there is a fight going on between the state legislature and one initiative group that is trying to push through an ethics reform package.   It can get very heated.  But that’s democracy.  Laws are proposed–either in the legislature or in the referendum process–and they are fought over and decided upon in a venue where majority rule of the people, either by representative or by public vote, establishes the law.

In order to prevent oppression of the minority, the constitution establishes a court system that is poised to prevent the majority from unjustly imposing its will upon the minority, what Alexis de Tocqueville called the “tyranny of the majority.”  The crafters of the constitution recognized that in transferring power from a king to the people there was the very real risk that the country would trade one tyrant for another, that of the masses.  In addition to filling the Constitution with various anti-majoritarian clauses to prevent the abuse of the minority by the majority, the founders established an independent judiciary whose job it was to check the power of the people.  When the masses were oppressive, it was the job of the judiciary to invalidate the law, to protect the minority against the unjust actions of the legislature or the people.

And this brings us up to Proposition 8 and Judge Walker’s ruling that the law is unjust to gays and lesbians who want to marry in the state of California, ruling that it violated several parts of the constitution.  He then decided that marriages should begin as soon as Wednesday August 18 at 5 PM.  Supporters of Proposition 8 appealed, and this afternoon a stay was granted until the 9th Circuit could rule on the appeal.

Strangely, this stay, while temporarily preventing gay marriages from beginning in California, was seen by some as a rule in their favor:

Loyola Law School professor Richard Hasen said Monday’s order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If

the panel had refused to place a hold on Walker’s ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

“I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay,” said Hasen, an expert on federal court stays. “The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion.”

Hasen said the hold “takes the heat” off Kennedy and takes the case “off the front burner for a while.”

In other words, the longer gay marriage can move through the courts, the longer it can avoid a potentially devastating ruling by the US Supreme Court.  As more states permit the marriage of gays and lesbians and as more courts overturn challenges to gay marriage, as recently happened in Massachusetts, the belief is that it will become more likely that the US Supreme Court will uphold Walker’s opinion.

But there are naysayers.  Edwin Meese, U.S. attorney general from February 1985 to August 1988,  believes that not only was Judge Walker’s opinion wrong, but it was very wrong and overturns the will of the people with out justification.  he says “Walker’s ruling is indefensible as a matter of law wholly apart from its result.”  The first place he attacks Walker’s opinion is in ignoring binding Supreme Court precedent.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings.

Indeed, this is a path that is often cited as taken by judges who are seeking to obtain a certain policy.  They see the justice in what they are trying to obtain as a result, and to that end, their opinions cite persuasive evidence to an end.

But Meese takes issue with Judge Walker’s evidence, as well:

Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the “legal union between one man and one woman as husband and wife.”

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the “historical core of the institution of marriage”; “evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples”; traditional marriage is an “artifact”; and, also without reference to the monumental evidence to the contrary, that it is beyond “any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”

And this returns us to the balance between democracy and the judiciary.  Even the judiciary, when acting outside of the law, can be tyrannical in imposing a law on the people that is either unjust, undemocratic, or not their right to impose.  Judge Walker, by Meese’s estimation, has claimed that Proposition 8 imposed a private morality on a small group of people–essentially claiming that the majority is tyrannizing the minority.  Meese does not agree.  Whether or not we want to allow gay marriage is up for debate, but it is not an issue for one man, he says:

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.” Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have “no rational reason” to oppose gay marriage.

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