Wednesday, August 11, 2010

Judges should not legislate

Prologue: A federal judge ruled that a California State Constitution Amendment restricting marriage to one man and one woman is unconstitutional. He also held that the states do not have an interest in such legislation...

I really don't like jumping into the fray over the Gay Marriage issue as raised in California, but I feel I must. I do this only because I don't see anyone looking at this issue from any position other than whether or not “gay marriage” is right or wrong (morally and/or ethically). I do NOT think that is the correct issue.

It's about upholding the Rule of Law and the constitutional Separation of Powers.

I think the judge's decision is flawed. I also think it is a power grab of enormous consequence. We're talking about overturning, by federal judicial fiat, a duly implemented Amendment to a State Constitution. Not a law. Not a ruling. Not a bureaucratic regulation or invention - a (state) Constitutional Amendment. This is not an insignificant matter. It is arguable this federal judge is imposing his personal(!) view of the desirability of the Amendment upon the citizens who have demonstrated they wish to do otherwise. Herein lies a path to doom and destruction.

To begin: this issue has nothing to do with whether gay marriage is a good or a bad idea. I personally DON'T REALLY CARE what you do in your own home. My personal opinions and agreement with or disgust with private practices that do not directly interfere with *my* personal rights is immaterial from a political and/or legal perspective. Instead, the issue that is REALLY at the core has to do with the fundamental purpose and scope of constitutional law.

In the case of gay marriage, some states adopted (allowed) gay marriage either by legislation or through state judicial action. The legitimacy of those actions was not in question in this case, nor should it have been (State's rights). In California, the state courts had found a 'right' to gay marriage. However, in response to that ruling, and through the constitutionally legal Initiative process, the people of California amended their state constitution to forbid that. The trial should have been over the right of the citizens of the state to make such a decision. The California Amendment can *only* be overturned if it is clearly in conflict with the US. Constitution. (It isn't: the Constitution is silent on the matter. Sorry.) We're not talking about the way things ought to be or the way a vocal minority/majority would like it to be - we're talking about the Law.

Instead it became a trial over the “wisdom” of the amendment. The judge wanted to hear evidence that forbidding gay marriage had some legitimate state purpose, and part of his ruling is that the state has no such reasonable and legitimate end. Whether he is right or wrong about such ends is beside the point. The fact remains that those issues are clearly legislative matters. I have doubts that even the currently defined Supreme Court will be able to find such a foundation to justify that ruling overturning the Amendment. This is not about enforcing mob rule (e.g., 'democracy' in action). It *is* about the separation of powers and the relationship between the federal and state branches of government. The U.S. Constitution DOES NOT provide for the Federal Government to substitute its judgment for that of the state legislatures or state citizenry *EXCEPT* where Congress is explicitly granted such powers. The amendments where the Gay Marriage ruling must be grounded in Constitutional law do NOT mention equality of the sexes and genders.

It should be noted the Equal Rights Amendment (ERA) *DID* cover this topic. But, for better or worse (arguable either way), the ERA failed of adoption by the states. If the ERA *had* become part of the Constitution, there wouldn't have been a question about the power of Congress, and a bit more about the power of the Supremes to *impose* acceptance of Gay Marriage upon the states over their objections, if any. But the ERA wasn't adopted: it didn't happen. Therefore, neither Congress nor SCOTUS has been given explicit power over the matter, as required by the principle of Separation of Powers.

*** A sidebar comment on the ERA itself - Through much of the early 20th Century ERA amendments were introduced in Congress by Republicans and rejected by Democrats. General Eisenhower was in favor of the ERA, as were many women's rights organizations. Other women's organizations wanted special provisions to allow work rules that would shield female office workers from heavy lifting, require nursing rooms, etc. Eleanor Roosevelt opposed the ERA on the grounds that women needed certain protections. The arguments tend to be sociological, not legal. Which, IMHO, is one reason (among many) why the legislation failed. The point: the ERA is not (was not) a Democrat vs. Republican or Liberal vs. Conservative issue. I raise this point to show that both parties have positioned themselves on either side of the ERA legislation from time to time as deemed politically expedient. ***

The U.S. Constitution grants specific powers to the federal government. All other powers, including matters such as slavery and racial equality, were left to the states. The states are free to adopt mutually inconsistent laws (one of the few things they don't avoid doing), unless Congress has been given (and exercises) jurisdiction. What one state may see as a virtue, another may see as a vice - and that's OK... IMHO, that is precisely what was intended by the Framers, with the issue of 'slavery' being the best example. I've read that John Adams (for one) personally hated the institution of slavery, but in order to form the Union, he agreed not to forbid it at a federal level so that those states which favored allowing slavery could continue to do so. The Civil War Amendments gave explicit authority to Congress over the states in certain matters. Those Amendments did NOT abolish state sovereignty.

The Nineteenth Amendment gave women the vote. The old joke went, "The boys went overseas to war and came back to find that they couldn't drink and women could vote." However, the Nineteenth Amendment still did not specifically take aim at or directly change divorce and alimony laws in the various states. It should be noted that by granting women voting rights, such laws were subject to change, and such changes did occur - but not through 'judicial' mandate.

Whether or not gay marriage is a good idea, whether or not the legal effects of marriage are achieved by a Civil Union, whether or not states have a legitimate purpose in allowing or forbidding gay marriage should NOT be a part of a federal trial before a federal judge. As this case wanders through the court system, the arguments *ought* to be more focused on following the established constitutional limits of the judiciary to pass judgment on legislative matters. It is not for the courts to debate the wisdom of allowing or forbidding gay marriage. That is a legislative matter. Period.

OK - Here's my Key Point - Once you begin to hand over purely legislative matters to judges appointed for life, you have abandoned the principle that governments derive their just rights from the consent of the governed. (It's arguable this was done long ago, and the current environment is just another step down a familiar and dangerous road. But set that aside for now.) We abandoned that particular governmental principle when we threw out rule by monarchy.

OK.. OK... I can hear the counter-arguments starting... Would it be inappropriate if a federal judge overturned a law preventing blacks to marry? Or preventing blacks from marrying whites? Why is it an overstepping of bounds when a federal judge overturns a law that tries to prevent two adults of any sort from marrying? Given that - according to some, but without objective proof - a tendency towards homosexuality is a genetic condition, just as skin color is a genetic condition, it seems odd to allow discrimination against the one (no matter how many people vote for it or desire it) and not the other...

#1 - There is a HUGE difference between overturning a LAW versus overturning an AMENDMENT to a State Constitution. Adding Constitutional Amendments - state or federal - is not supposed to be easy for that very reason. And it isn't.

#2 - Social engineering forced upon an unwilling populous is dangerous and painful, no matter how well-intentioned, especially when it comes from an unaccountable judge on the bench.

BUT - More importantly - that entire argument ignores the fact that the Civil War Amendments *gave* Congress specific power over the states with regard to race. The 14th and 15th Amendments were intended to accomplish that result. But the Civil War Amendments were not self-enforcing.

Let me take a moment to be perfectly clear - I am *NOT* in favor of segregation, but that I am very much against the Courts assuming legislative duties and trying cases on so-called “sociological evidence”. I believe that the law ought to be color blind - Period. Preferential treatment under the law in ANY direction is wrong. I strongly believe in the Constitutional separation of powers, and that no matter how good the result that comes from judicial legislation, it is a very bad precedent, and ultimately destructive.

The federal courts DID overturn laws that forbade blacks to marry whites. But they only did so citing the U.S. Constitutional Amendment that specifically forbids the states from denying anyone the equal protection of the laws, and it was recognized the intent of the Amendment was to establish the rights of the freedmen. If one had put to that Congress, or to the state legislatures that had to accept the Amendment, that this established the right of blacks to marry white, the results are not entirely determinable. Congress never acted on the matter.

That said, I think there is no question regarding the opinions of large majorities of the citizenry on the subject of same-sex marriage. You cannot reasonably infer that any legislative body adopting the 13th and 14th Amendments *ever* contemplated that issue. Of course we can get around this conflict fairly easily - all that is required is an Act of Congress clearly defining "privileges and immunities". They have not done so.

Consider: among other things, the individual states control “Licensing” for various professions. Doctors, Insurance Agents, Cars Dealers, Plumbers, Hairstylists, etc. Each state sets its own licensing requirements. In a similar fashion, each state can require particular provisions (e.g., insurance mandates) for certain products sold in their state. There is no question that the 'equal protection under the law' is not an issue. Such power - regardless of how beneficial such standardization might be - does not explicitly rest with the federal government; it's handled by the states.

*** Sidebar: We all know there is a LOT of political discussions about creating a federal statute for mandated health care insurance coverage which would take this control away from state regulators. No one (seriously) suggests that the Constitutional clause for 'Equal Protection' is THE reason we should do it. Instead, the argument (correctly) is over whether or not we want the federal government to have that specific wide-ranging power. ***

Another point, and closer to the gay marriage issue - Each state has its own laws on the minimum AGE for a couple to become married. Old TV/movie stories frequently used a plot-line device where a young couple had to “cross the state line so they could get married”. No one questioned the constitutionality of this arrangement - everyone accepted that each state could set its requirements as they saw fit. Under the federal ruling in the California case, could a young couple (regardless of gender groups) argue that prohibiting their marriage (which each person wanted), was a violation under equal protection? What about polygamy? And this scenario is just concerning a mere state LAW, not overturning a legally implemented (state) Constitutional Amendment.

One more: I won't go into detail here for obvious reasons, but could you argue, under the Equal Protection clause, that states should not be allowed to force membership in an 'approved' union before obtaining a job? Some states have “Right to Work” laws (Georgia is one); others do not. Is it morally and ethically correct to restrict one's employment options - and thus restricting their personal survival - in this manner?

Simply put: It is not for the courts to determine legislative matters. The point of legislation is that it is the proper expression of the consent of the governed. It is not for the courts to make those determinations. I can argue for or against the idea that the average judge is smarter than the average Senator. We can point fingers at various instances where the courts are better (or less) able to legislate than the Congress and/or state legislatures. Perhaps the world would be better off if we were all ruled by the best and the brightest; but that is not the world we live in. Besides, just WHO gets to decide on WHO to put in charge and over WHOM?

THE founding principle of this country is that our government derives its just powers from the consent of the governed. Judges should not and cannot attempt to manage our 'consent' for us. Those powers are given to legislatures. If laws are unjust, how can judges enforce them? That is a question of jurisdiction.

The Supreme Court has the authority to run its house as it chooses. But it does not have that same power over state courts. This, in my judgment, is the right way to deal with the issue. Leave it to the states and their legislatures. The same ought to have been done with abortion, and with school segregation and potentially assigned to other areas (social security and retirement). The CORRECT remedy to ending segregation was to clearly establish voting rights, which were very properly within the constitutional authority of Congress. When they *finally* got around to that, they did more to end Jim Crow than the court interventions ever did.

RIGHT NOW, Congress has authority over the states in matters of race. It attempted to gain such authority in matters of sex, but the ERA was not adopted by the states and is not part of the Constitution. Congress might assert such authority by defining "privileges and immunities" in an Act of Congress, but it has not done so. Until that time, I would say that the plea to allow or disallow gay marriage ought to be directed to the state legislature, or, in the case of California, directly to the people - who have already spoken on the matter. Right or wrong, the ball is, and belongs in, the people's 'court'.

In any case, such decisions should not be up to judges.

- Steve

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