A three-judge panel of the 9th U.S. Circuit Court of Appeals has ruled, 2-1, that Proposition 8, California’s duly-enacted constitutional amendment declaring that only marriages between one man and one woman would be recognized by the state, is unconstitutional.
Thus does the last pretense of self-government evaporate. When the elite decides that something like marriage must be re-defined, the Little People have absolutely no say in the matter, even if they follow all of the proper steps and secure a ballot victory to lawfully amend their governing documents.
The L.A. Times captures the sheer arrogance of the decision:
“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.
The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.
In a separate decision, the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship. Walker, a Republican appointee who is openly gay, said after his ruling that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.
We’re left with a couple of judges deciding that a constitutional amendment, passed after vigorous debate with 52 percent of the vote, is unconstitutional because they have decided it serves no useful purpose. The people who voted for it obviously disagree, and many would also disagree with the contention that Proposition 8 merely “lessened the status and human dignity of gays and lesbians in California.” It is possible to believe in the unique value of traditional marriage without denigrating those who choose not to participate in it, or demonstrating contempt for their long-term relationships. At least, it used to be.
What if California had passed an amendment authorizing gay marriage, following exactly the same procedure? Presumably these judges would not strike it down on the grounds that it served no purpose, beyond assaulting the dignity of people who seriously believe in traditional marriage, including – but not limited to – the devoutly religious. There remains little question that the active, aggressive re-definition of marriage is under way, and only movement in one direction is considered “valuable.”
In other words, this is not really a question of law, but power. Three judges (including Walker) have decided that this amendment is not illegal, but wrong. It’s hardly novel for judges to hand down such decisions, but it’s a disturbing trend, and strongly contrary to the principle of self-government… especially as this reasoning prevails among the larger federal judiciary, and combines with their refusal to strike down actions of the State which are clearly illegal, but deemed “right.” If the people cannot change their constitutions in manners the State disapproves of, and the State claims the sole authority to divine the meaning of those constitutions, what’s left?
This isn’t the first time the people have been told they are not qualified to make important decisions about their government, even when they feel strongly enough to put in the hard work necessary to win a major election. It won’t be the last. Many more requirements the people would place upon their local, state, and federal governments will soon be ruled “without value.”
The legal battle over Proposition 8 will continue, through appeals and eventually a Supreme Court ruling. By the time all is said and done, perhaps we’ll be up to a dozen people telling us that our ancient traditions of marriage have absolutely no value. Then we’ll get to hear them explain why prohibitions on the number of people who can participate in a marriage have some defensible value, beyond “lessening the status and human dignity” of polygamists. I suspect they will fail in that effort, if they even bother to make it.