Proposition 8 Struck Down

Many opponents of gay marriage are already yelling "judicial activism," and claiming that the judge made up a new right to gay marriage. But if you look at the reasoning used to strike down California's law, that's not what he did.

Walker, in his decision, writes that "Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license."

This is the key element in the decision. There is no rational basis for discriminating against gays/lesbians who want to marry. The judge amplifies that argument with findings of fact, some of which are listed in the linked article.

Although I am in favor of gay marriage, I also oppose judges creating new constitutional rights by fiat. But that's not what this judge did. Instead, he did exactly what judges are supposed to do. He reviewed a law, and found it to be unconstitutional discrimination. And in my opinion, he is correct. The prohibition of gay marriage is based on long-standing dislike of homosexuality and prejudice against gays -- often founded on religious teachings. If the state is going to be involved in marriages, there's no rational basis for prohibiting two people of the same sex to enter into what is a legal, contractual relationship. In my view, laws specifically banning gay marriage are clearly discriminatory and unequal treatment under the law.

For those complaining that the will of the majority is being ignored, that's why the U.S. was set up as a democratically-representative constitutional republic, with a balance of power between three branches, rather than a pure representative democracy. Sometimes minorities, even small minorities such as homosexuals, need protection against having their rights trampled by the will of the majority.

On the other side, I have long thought that gay marriage rights should come through legislation rather than the court system. Despite the valid reasoning of this judge, many will not accept it, particularly since it goes against such an entrenched tradition, as well as many religious beliefs. I would prefer that homosexuals take a longer view, attempt to change minds, and build a majority consensus in favor of gay marriage rights. I understand why they don't want to wait, but at the same time I think the judicial path stirs up animosity toward gays. It will be interesting to see what happens when this case hits the Supreme Court.

The Wages of Incompetence

Stuart Taylor at National Journal has an article up called, "A Judicial Decision That Plagues Obama." It's a great analysis of how the incompetence and overreach of the Bush administration led to the judicial backlash that hampers our ability to deal with hostile aliens.  I've argued that hostile aliens have no rights and should have none. Taylor shows that this isn't a particularly radical view, but was instead the standard legal interpretation until recently. He quotes the 1950 decision Johnson v. Eisentrager:

"We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

So what changed? As Taylor explains,

the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

Rather than taking care to separate the innocent or various categories of suspects from the confirmed terrorists, the Bush administration acted in a clumsy and incompetent manner, with the result that innocent victims were subjected to the same interrogation procedures as the guilty. And it failed to provide "a fair opportunity" for anyone seized by mistake to plead their case and possibly secure release.  By failing to create a system to sort the innocent from the guilty, asserting the authority to lock detainees up forever, and using questionable (at best) interrogation techniques on captives regardless of innocence or guilt, it created a backlash that has led to the current situation --where people are actually arguing that hostile aliens should have similar rights to U.S. citizens.

Although I strongly support the option to use extreme measures, including torture, on unmistakably known terrorists like Khalid Sheikh Mohammed, the rest of the Bush administration's record in dealing with detainees is a legacy of incompetence & failure. As Taylor argues, the resulting judicial backlash will hamper the Obama administration in fighting terrorism, and depending on what happens

The potential for disruptive and even dangerous judicial intrusions into military matters is considerable.

Just because the Bush administration's incompetence caused all sorts of problems, doesn't mean the situation can't be made even worse by misguided efforts that go too far in the other direction.