Gay marriage ban ruled unconstitutional

The WSJ reports:

This just in: San Francisco federal judge Vaughn Walker has shot down California’s Proposition 8, the initiative passed by voters in 2008 that banned same-sex marriage.

Judge Walker said Proposition 8 violated the federal constitutional rights of gays and lesbians to marry the partners of their choice. Click here for the opinion.

“Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” the judge wrote. “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Walker’s ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

If I lived in California I would have voted against Proposition 8. I have no problems with same sex marriage.

But I do not like judges deciding that there is a constitutional right for same sex marriage, and over-riding the will of the people.

I do not think the intent of the the drafters of the US Constitution and Bill of Rights could possibly have been to force same-sex marriage onto a state, despite its rejection by popular decision.

Eventually the US Supreme Court will decide the case on the legal issues. I am more interested in the political.

I think having Judges “decide” something is a right is generally counter-productive. Roe v Wade is a fine example. Why so many hate that decision, is because a group of Judges decided abortion policy for the entire United States. If Roe v Wade had never been decided that way, I beleive most states would not have reasonable abortion laws, without anywhere near the controversy that surrounds them.

Justice Scalia has made the point that there is almost no controversy over women having got the vote, because it was done the proper way – through elected representatives changing the law. If the US Supreme Court had just one day declared women have the vote, then the decision would have far less “ownership” from the public.

I’m not against an entrenched bill of rights, where laws that conflict with it can be struck down. I am against what is generally called judicial activism where issues that should be decided through the political process, are decided overwhelmingly by the judicial process.

Interestingly the Judge who made the ruling is gay, but was a Reagan appointee and is regarded as conservative or tending libertarian.