Addressing a Few Red Herrings
So what would happen if a state were to have a referendum and, by a 52-48 majority, the people chose to ban all guns (except for those owned by the police)? What if a community held a referendum and a majority of the community chose to prevent African Americans from owning property in the community? What if a state legislature passed a law banning Islam? What if that state passed a law that required the Catholic church to ordain women or Jews to eat pork? What if a local community voted to require students in its public schools to pray to Jesus or observe Lent?
What would happen if a state held a referendum and a majority chose to punish drug users with a public flogging followed by cutting off a hand or decided that people who were arrested and wanted a lawyer weren’t entitled to have one appointed for them? What if a state decided that people arrested for a crime had to testify and couldn’t “take the Fifth”? What if a state decided to reinstitute slavery or decided that only property owners could vote? What if a state decided that people were not allowed to say or write anything critical of the government?
And what if a state decided that interracial or interreligious marriage was prohibited or that marriage by post-menapausal women was prohibited? What if a state required couples to sign a pledge to try to procreate before getting married? What if a state decided that only marriages performed by certain religious sects were permissible?
I doubt that anybody would think that any of the foregoing would be acceptable in America (though I worry that some of them might actually be capable of achieving majority support). Why? Because of the rights and protections granted by the United States Constitution. Yet, in the wake of yesterday’s federal district court ruling that the ban on gay marriage “enshrined” in California’s constitution violates the United States Constitution, many opponents of gay marriage are trumpeting the “but the people voted for it” argument. What these people seem to conveniently forget (or actually fail to understand) is that the very foundation of our system of government recognizes the will of the majority but protects the rights of the minority. In other words, minority groups in America, even those who many not be favored by the majority, are protected from the whims of the majority (sometimes called the “tyranny of the majority”).
Thus, the fact that California’s voters decided to add a ban on gay marriage to their state’s constitution is really a red herring; it is of no more import than if the state had decided to ban a particular religion or require those of a certain demographic group to wear stars on their clothing. In America, the majority cannot, by popular vote, take away rights guaranteed by the Constitution. The issue of whether same-sex marriage is a right guaranteed by the Constitution is a different question, one that Judge Walker addressed yesterday; but if same-sex marriage is a right protected by the Constitution, then the fact that Californians voted against it* is meaningless.
Also, promptly following Judge Walker’s decision yesterday, some on the right (hey there FOX News!) started talking about the Judge’s bias because he is gay. This suggestion is not just wrong; it is patently offensive.
First, I note that those alleging bias against Judge Walker were conspicuously silent when another federal judge with extensive stock holdings in the oil industry refused to recuse himself before considering the Obama administration’s ban on offshore drilling. Those same people were silent just a few days ago when another federal judge failed to recuse himself from hearing Virginia’s lawsuit against the new health care reform legislation even though he has financial ties to Virginia’s Attorney General, the lead plaintiff in the case. And those sorts of conflicts-of-interest are prohibited by canons of judicial ethics.
More importantly, ask yourself this: Why is it that when it comes to litigation involving social issues, straight, Anglo-Protestant white males are never seen as being biased, but a judge who is black or Jewish or female or gay is biased, often for no other reason that the fact that the judge is black or Jewish or female or gay?
Or think of it this way: Must every woman judge recuse herself from a rape case? Must every Jewish judge recuse himself from a case involving church-state issues? Must every Hispanic judge recuse himself from an immigration case? Must a black judge recuse himself from every lawsuit alleging racial discrimination? And with your answer to that last query in mind, must every white judge recuse himself from a case alleging racial discrimination if one of the parties is … um … white? And, by all of that reasoning, shouldn’t any straight judge have been forced to recuse himself precisely because he wasn’t gay?
Those who argue bias of this sort are either so blinded by their own bias and bigotry or simply cannot recognize that, in order for our system to work at all, we must all have faith in the impartiality of our judiciary. That a judge disagrees with us doesn’t mean bias; it means that judge judges a particular issue differently that you or I might. It doesn’t mean bias. But if we start seeing bias in every judge solely on the basis of that judge’s color or religion or DNA, then it won’t be long before our judicial system becomes a joke and the respect for the rule of law on which the foundations of our country are supported will rot away.
One final point on this issue of bias, specifically with regard to Judge Walker: Have you noted that those who claim that Judge Walker is biased because he is gay have not bothered to mention that Judge Walker was nominated by President Reagan and then again by President George H.W. Bush or that during Judge Walker’s nomination hearings, he was opposed by gay rights groups? Hmm. Does that weigh upon the question of any perceived bias?
Finally, if you hear someone say that they disagree with the Judge, ask them to explain why they think that gay marriage should be prohibited. If at any point they mention their particular religious views, ask them the following two questions: (1) Which of the Ten Commandments are or should be enshrined in our law and (2) whether your religious views should bear upon what that person is allowed to do (i.e., because Jews don’t eat pork, should my religious views be taken into account to determine if others can eat pork)? Also, if at any point in the discussion, the person says that gay marriage will “destroy traditional marriage” (or some other similar nonsense), ask them to be specific and explain how a marriage by a gay couple will impact that person’s marriage. You might also ask them if it is because of gay marriage that Rush Limbaugh and Karl Rove have each been married and divorced several times. And lastly, if the person says that Judge Walker’s reasoning or legal analysis was wrong, ask them if they’ve actually read the opinion. It’s find if someone disagrees with the outcome of the decision, but when people start to attack what the ruling actually does (or doesn’t) say, then it is worth noting whether that person has actually read the decision or is just talking on the basis of what they’ve been told by FOX News, Glenn Beck, Rush Limbaugh, or others. Then challenge the person to go find a copy of the opinion (hint, click the word opinion for a copy), read it, and then discuss what the judge said.
For my part, I plan to read the opinion over the next few days. I’m looking forward to it.
*Note that there is speculation that the vote on California’s Prop 8 was marred by massive voter confusion. People who were opposed to gay marriage had to vote yes while those who supported gay marriage had to vote no.