teworthy that the right-wing reaction to U.S. District Court Judge Vaughn Walker’s ruling against California’s Proposition 8 ban on same-sex marriage is not based on coherent, substantive and scientific arguments about the impact of gay marriage on society. Rather, it’s based on deeply held beliefs, beliefs that conservatives say should have the force of law regardless of how weakly their beliefs stand up to the cold light of truth.
The second paragraph of this morning’s National Review editorial on the judge’s ruling takes him to task for “his decision to have a ‘trial’ of the ‘facts’ in the case rather than proceed straightaway to legal arguments about the constitutional issues.” The editors go on to complain that these findings of fact make up the preponderance of the judge’s 130-page ruling.
The Heritage Foundation also piles on, saying in its Morning Bell email today that “Walker not only ignored the views of millions of Californians, but by basing his decision on the 14th Amendment, he also ignored the factual determinations of every single popular vote that has been held on the issue in the past two decades.”
I’m sorry, but judicial rulings are not intended to be plebiscites and popular votes are not the same as “factual determinations.”
It has been more than a bit disturbing to hear one conservative pundit after another complain that Walker—in presumably typical “liberal” or “elitist” fashion—has ruled against the will of the people. But an independent judiciary is just that—independent. Or, at least, it should be. But the irony here is that conservatives have not batted an eye when it comes to the record of conservative jurists who have bent the law in favor of the powerful over the powerless. A Supreme Court that, for example, says that there should be no difference in the regulation of the political speech of a person standing on a soapbox in the park and a multinational corporation buying network television ads reflects neither a sense of popular sentiment nor a rational grasp of the real world. It does reflect a pattern of partiality to the powerful and disdain for the powerless.
But when conservatives are not busy turning a blind eye to rulings that allow corporations to run roughshod over the interests of the public, they complain that judges such as Walker are not consulting opinion polls or election results before they rule on matters of law—especially when it comes to the bedrock principle of equality under the law.
It is that principle which is at the core of the gay marriage debate—whether a society can construct different sets of legal privileges for different classes of people based on beliefs about those people that have no real basis in reality.
As much as conservatives resent the comparison between their reaction to same-sex marriage rights and their reaction to the civil rights struggles leading up to the 1960s, the comparison is apt. Conservatives have consistently held that the legal system is out of bounds when it seeks to confer rights to a group of people before a majority of the public is ready to accept that group’s equality. A majority of white parents weren’t ready to send their children to schools with African-American children, the most benign of them reasoned, so the Supreme Court at best acted too hastily in 1954 in saying that forced school segregation was illegal.
That’s not a principle that you will find in the Constitution. What’s explicit in the 14th Amendment to the Constitution is the prohibition against denying any citizen “equal protection of the laws.” Neither the 14th Amendment nor any other clause in the Constitution says that citizens who are not being afforded the full rights and privileges of citizenship have to wait until 51 percent of the public has decided that it’s OK for that to happen.
The other beauty of the Constitution, and the judicial system at its most fair, is that it recognizes that America is a nation full of people who are entitled to their own beliefs—but not entitled to their own facts. In the Proposition 8 case, opponents of same-sex marriage were given ample opportunity to lay out the facts that would make a compelling case that the state had an interest in denying the rights of marriage to same-sex couples. Instead of facts, they presented assertions. As they should have, they lost.
Judge Walker’s ruling reflects jurisprudence as it should work. The conservative demands that the ruling be overturned based on superstitions, prejudices and widely held falsehoods should continue to frighten us all.