Wednesday, October 11th, 2006

—Note, for context see the two previous posts—


In this post I want to explore a little further the attitude expressed by Shannon Minter and Dennis Herrera, that the courts–rather than the people–are to decide important moral issues in this country. An anonymous commentator recently posted a comment to one of my blog entries, arguing that contrary to my complaint, courts are supposed to decide these moral issues for America.


S/he wrote: “That’s the point of having courts – to avoid the main flaw of democracy, majoritarianism. In the early 20th century the majority of americans were happy with segregation, and it was the job of the courts to choose the moral right despite the will of the people. Our courts, on the highest levels, are free from election for this reason. As a side note, I have no interest in seeing polygamy legalized and I don’t believe that religion should ever be afforded these special rights by reason of their participants credulity.”


This is a widely held belief among Americans. They have become so accustomed to courts deciding controversial moral matters for this nation that they have come to believe it is their job to do so. Some of my questions/comments to the anonymous poster are worth repeating here:


Where do you get the idea that the purpose of the courts is to choose the moral right despite the will of the people? Do you find that in the Constitution? No. Do you find that in the writings of the Founding Fathers? No. You are talking about how the government is supposed to function. If you are going to assert that the purpose of the judicial branch is to choose the moral right when the majority won’t, you’ll need a reference in the Constitution that says so, because that is the document detailing the function and responsibility of each branch of government.


What makes you think judges are in a better place to judge what is right than the rest of us are, including the other two branches of government? You seem to presuppose (whether aware of it or not) that judges are morally and intellectually superior to everyone else. Nonsense. If judges can overrule the will of the majority whenever they do not like it, then we do not have a democracy; we have an oligarchy.


You also seem to presuppose that whenever judges make a decision that goes against the will of the majority, that such a decision is for the moral good. But why believe that? It may be easy to think that these days given the liberality of our judges and their judicial philosophy. But what if the tables were turned? You sound like you might be a social liberal. What if the majority of Americans were social liberals like yourself, and yet the justices were social conservatives? If they kept overturning the will of the people on the basis that the will of the people was immoral, would you be saying “the purpose of the courts is to choose the moral right despite the will of the people”? I highly doubt it. You would be saying the courts are interfering with democracy. I would agree. Let me give you an example.


I oppose embryonic stem cell research (but support the morally neutral adult stem cell research). I happen to live in CA, a state that recently approved $6 billion dollars in research dollars for this kind of research. My fellow citizens voted this in. While I am completely opposed to it, and while I am being forced to fund it with my tax dollars, I would not think of trying to overturn the law by shopping my case to some court that would do just that. It was the will of the people. And clearly, it is Constitutional. I know so because our Constitution says nothing about ESCR; therefore, judges have no business ruling on its legality. What I will do, however, is work to persuade my fellow citizens to change the law. I will work to change their mind/will, so that the majority will shift to my position. That is democracy. Unfortunately liberals cannot persuade the majority to adopt their view, so they circumvent the democratic process by taking their case up before unelected judges who share their views, and get the law pronounced “unconstitutional” (even though 99% of the time the Constitution has nothing to do with it).


The fact of the matter is that the personal opinion of a justice should have nothing to do with his/her decision. Their job is to interpret what the law is, not what they would like it to be. When the Constitutionality of a law is in question, again, the purpose of a justice is not to determine whether they think it ought to be permitted, but whether the Constitution permits it. That is a question of interpretation of a historical document. It’s not a question of a judge’s own personal views on the issue.

Now for the good news on the judicial front (see last post). Last week the 1st District Court of Appeals reversed a lower court’s decision in 2005 that CA’s laws against same-sex marriage were unconstitutional. I’m not excited about this ruling simply because it agreed with my own position, but rather because it demonstrated the judicial restraint that is integral to a properly functioning judiciary, and a properly functioning democracy. Listen to what the justices had to say in this 2-1 decision:


“We conclude California’s historical definition of marriage does not deprive individuals of a vested fundamental right.”

“Courts simply do not have the authority to create new rights, especially when doing so involves the definition of so fundamental an institution as marriage.”—William McGuiness, presiding justice of the 1st District Court of Appeal

“Marriage has historically stood for the principle that men and women who may, without planning or intending to do so, give life to a child should raise that child in a bonded, cooperative and enduring relationship.”—Justice Joanne C. Parrilli, in a concurring opinion. [She noted that it is hardly irrational for the state to recognize this, and thus privilege marriage to a man and woman].

A resounding YES! I’m so happy to know there are still courts out there who are interested in justice, but recognize that their job is to interpret the law, not make the law. It’s a breath of fresh air; a departure from the many cases in which judges impose their moral views on the rest of America under the rubric of interpreting the law.


As you can guess, not everyone was happy with the decision. Shannon Minter of the National Center for Lesbian Rights, claims that the “majority abdicated their judicial responsibility.” How? “It is incorrect and unfair to say that the courts don’t have the responsibility to decide whether excluding a group of people from marriage is constitutional. That is their job. That is exactly what the governor said.”


She is referring to a statement the Governator made last year (I believe) when he was faced with having to sign or veto a bill that would approve same-sex marriage in CA. He said the issue was one the courts needed to decide. Interestingly he vetoed the bill on the grounds that the people had decided the issue in 2000 through a ballot initiative (Prop 22), and the will of the people should not be overturned. I think he was right about the latter, but wrong about the former. Personally, I think the Governator was trying to find any way he could to pass the responsibility to someone else for the decision he had to, and did make. Clearly he was not expressing the way the government is supposed to function, and Minter should no better. What the courts are supposed to do is determined by our constitution, not the comments of a governor. Rather than abdicating their judicial responsibility, the court submitted to it.


San Francisco attorney, Dennis J. Herrera, was not happy either. He said, “If other courts had followed this reasoning, schools would still be segregated, and married couples would not be able to use birth control.” That may be true, but as I have argued previously on this blog (when it was still an e-blog), while the opinion of the justices on these issues may have been the right opinion, they thwarted and undermined democracy by ignoring the will of the majority:


[T]he Supreme Court is not the place to decide social issues such as slavery, abortion, same-sex marriage, interracial marriage, access to contraception, etc. Those issues properly belong to the people to decide through their elected legislators. Was it wrong to have slavery legal in this country? Yes! Was it wrong to prevent a white and black couple from marrying? Yes! Was it wrong to discriminate and segregate based on gender and race? Yes! But the Court is not the place to correct such social injustices. I’m glad we no longer have unjust laws against interracial marriages, but I am upset that the Supreme Court took it upon themselves to decide those matters for us. The people should have decided them. The Supreme Court is so haughty that it thinks it can wrest away every political issue from the states and decide it for us, and then we have to simply bite our tongues. Nonsense!

There’s more I would like to say about this, so I will do so in a new post.

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I often report on where courts go wrong. It’s easy to do with so much judicial activism going on these days. But if I am going to report on bad decisions, I should report on good decisions as well. So here’s a good report. Well…a good report is coming. First I have a bad report, but not about the courts.


On September 30 the governor of CA, Arnold Schwarzenegger (a.k.a. the Governator), signed a barrage of bills, including a very important bill affecting the fight for marriage. If you follow the mass media, you probably didn’t even hear about it. The bill allows for same-sex couples in CA to file their state taxes as a married couple. Why does that matter? Melinda Penner of Stand to Reason explains:


[T]he people of California passed Propositions 22 several years ago making it the law of the state that marriage is between a man and a woman. Did that law protect the word “marriage” or a privileged recognition by the state? The Governor and the representatives who passed this law are playing word games.

Marriage, in the legal sense, is a government-recognized status marked by privileges and responsibilities given by the government. When the legislators an [sic] the Governor start handing out those privileges that constitute the government recognition of marriage they are treating same-sex partnerships as married without legally using the word. They’re treating marriage as only a word, not a status. They apparently think that by not using the word “marriage” that they aren’t violating the people’s wishes. When the voters of California passed Prop. 22 we weren’t just interested in protecting the word marriage – we weren’t playing word games. We were protecting the thing – the government-recognized status.

Governor Schwarzenegger has stated in the past that Proposition 22 was the will of the people and it had to be respected, even if it wasn’t his personal view. The governor has now violated that will he professed to respect by playing this game started by the state legislators. And here’s the larger game: If they cane [sic] gradually parcel out the privileges and responsibilities of marriage to same-sex partners, one of these days they’ll declare that we might just as well use the word “marriage” since we’re already treating them as married.

Marriage from the government’s perspective isn’t just a word, it’s a recognized status. It’s the status, the recognition, that is at issue here. Lawmakers should stop playing word games.<!–[if !supportFootnotes]–>[1]<!–[endif]–>

That’s the bad news. In my next post I will give you the good news.



<!–[if !supportFootnotes]–>[1]<!–[endif]–>Melinda Penner, “Word Games”; available from; Internet; accessed 03 October 2006.

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