Mitt Romney made the following statement regarding the Ninth Circuit Court of Appeals decision striking down Proposition 8 as unconstitutional:
“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”
Allow me to retort.
1. The judges on the 9th Circuit Court of Appeals are, of course, "unelected." As a graduate of Harvard Law School, Mr. Romney ought to know why. I suspect he does, but since he subjects these judges to derision (which is unethical for an attorney), allow a lowly grad from J. Reuben Clark to state the obvious: Federal judges are appointed, by the President, subject to Senate confirmation. They serve lifetime tenure precisely so they may focus on the Constitution and not on politics. In pandering to one side of the question, Mr. Romney insults the integrity of these judges, as if their role were illegitimate because they're "unelected." In doing so, he does a disservice to the bench, the voters and the nation.
2. It is the job of an appellate judge to follow the law, whether it's state law, federal law or the Constitution, itself. Referenda may differ from legislative enactments in who passed them (the voters as opposed to the legislators) but not in the primacy of higher law. The State Constitution trumps ordinary state legislation just as Federal Law trumps state law. If Governor Romney truly believes the Constitution is inspired, let him embrace Article Six, which states that the Constitution is "the supreme law of the land."
3. Governor Romney says that the voters voted to "protect traditional marriage," which he personally believes to be "between a man and a woman." To be sure, they were voting to establish their definition of marriage - which excludes same-sex marriages. The argument that this is "traditional" leaves much to be desired. Many practices have a "tradition" that, at one time or another, excluded members of society on the basis of race, religion, gender and sexual orientation. In Governor Romney's Massachusetts, Baptists were disenfranchised because they weren't Puritans. For the first hundred years of this nation's existence, the enslavement of African-Americans was allowed - a practice which was quite popular (and voter approved) in the South. It wasn't until the 20th Century that the right of women, to vote as citizens, was protected by Constitutional amendment. Until recently, gays were summarily banned from military service - solely on the basis of their orientation.
4. Calling something "traditional" does not protect it from constitutional scrutiny. There were laws that attempted to define marriage as solely occuring between people of the same race. When challenged, those laws were invalidated as unconstitutional. There used to be Blue Laws, requiring businesses to close on Sunday, the Christian sabbath. When challenged, those laws were held unconstitutional.
5. It is the job of the judiciary to hold laws - some of them quite popular - up to constitutional scrutiny. When they do, and somebody doesn't like it, we inevitably hear braying and whining about "activist judges." But the system was set up - from the outset - with such actions in mind. George W. Bush famously quipped, "I'm the decider." When it came to running the Executive Branch, he was right. Right or wrong, popular or not, Bush was the one in the position to make the call. When it comes to the Legislative Branch, Congress has its own role to play, in deciding what bills to vote on. Every year, the president - Democrat or Republican - offers a laundry list of proposals for "their consideration." But ultimately, Congress is "the decider." Should it then come as any surprise that the Judicial Branch has its turn? When it comes to the job of interpreting the law, judges decide - whether they've been elected or not.
5. It's all to easy, for someone who is disenchanted with a ruling, to call the jurist an "activist judge." Absent judicial error, it's just baseless name-calling. Judges are bound to follow the law. If a judge errs, the case may be overturned on appeal. Given their role of reviewing the decisions of lower courts, it is especially the job of appellate judges to engage in judicial review. Not only is it not wrong for them to do so. It's, in fact, the point of their employment. Judges review decisions - executive, legislative and judicial - against the law of the land, including the Constitution.
6. When an issue of law is settled and established, it is the duty of the judge to follow it. That's the basic principle of stare decisis, which Governor Romney should know. But where there are new issues, or fresh legal arguments, judges may find themselves wrestling with a case of first impression. Dismissing such rulings as "judicial activism" is just political posturing, or ignorance. One may disagree with a decision, and take it up on appeal, but to write it off and go straight to name-calling is demagogic.
7. In this case, it's really irrelevant whether Prop 8 was a legislative enactment or a voter initiative. The popularity of the measure doesn't protect it from constitutional scrutiny. In a conflict between any law and the Constitution, the Constitution must prevail. Unfortunately for Prop 8 - which deliberately redlined part of California's Constitution protecting persons from discrimination on the basis of sexual orientation - the conflict between the vox populi and the equal protection couldn't have been any clearer.
8. Essentially, what the Ninth Circuit Court looked at was whether the law, as written, violated the Equal Protection Clause of the U.S. Constitution. Prior law has already established that citizens have the right to marry. The question then was whether a group of citizens could be denied that right on the basis of their orientation. It is already established law that a fundamental right cannot be violated without due process of law and without equal protection. To infringe upon a fundamental right, the state must have a compelling interest. This is the highest level of scrutiny (There are other standards - such as rational basis and substantial interest). In essence, the state must show not just a rational basis, or even a good reason. It must show a compelling interest.
9. There is no compelling interest for denying citizens the right to vote on the basis of sexual orientation. There are good reasons for promoting so-called "traditional marriage," but none of them compel the state to deprive its gay citizens from being able to marry as well. The idea that gays can marry, just so long as they marry heterosexually, is a non-starter. It is not the role of the state to tell its citizens with whom to fall in love. Even if you argue that heterosexual marriages are better, it's not a compelling reason to deprive gays of their right to marry other gays.
Mitt Romney made the following statement regarding the Ninth Circuit Court of Appeals decision striking down Proposition 8 as unconstitutional:
“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”
Prop 8 is now in the trash can, thanks to the 9th Circuit Court of Appeals, which found the law unconstitutional. Who knew? Well, apparently none of the high-ranking ruby-red chair crowd, singing hymns and acting as field generals in the effort to organize money and manpower - from one state - to clip the constitutional rights of others - in another.
President Hinckley heard a voice, and apparently Thomas S. Monson heard it, too. But I think it was FoxNews. Maybe somebody had their TV up too loud. Maybe Elohim and Jehovah sound an awful lot like Sean Hannity and Glenn Beck. I wouldn't know. I, too, heard a voice, but I think it was Reason, itself. The nice thing about Reason is it doesn't mumble, it doesn't stutter and it doesn't lie. Two and two will always be four, on Earth as it is on Kolob.
The Fifth and Fourteenth Amendments require Due Process and Equal Protection under the law. You can't take a group and tell them they don't have the same right to marry as everyone else. Nor can you put it to a vote, on the basis that the majority of citizens can tell a smaller minority of them, whether the minority can have the same bundle of rights as the majority. This is basic stuff. No rocket science. No Greek symbols.
Maybe it was a "team-building activity," like Zion's Camp. To my eyes, it looked as ill-fated as the Kirtland Bank. Lots of very excited people organized a lot of other excited people and funneled a lot of money and wingtips into a giant gesture that built some bridges while burning others. For about five minutes, Mormons were the heroes of Prop 8, then its villains, and now its victims. It was a lost cause from the outset. Nobody saw the smoke on the horizon, not even Holy the Ghost.
Except people like me, people who did the math and realized how this story would end.
Of course, nothing ever ends. The case will be appealed to the U.S. Supreme Court. In a way, Prop 8 is unique, since it was a very specific ballot measure in California - one that violated California's own state constitution. The Supreme Court doesn't have to hear it, and won't if it doesn't want to say - once and for all - that such ballot measures violate the U.S. Constitution.
The Court could say that California's allowance of gay marriage violates DOMA, and that federal law upturns state law, even though marriage is largely a state issue. The last time the federal government weighed in on the definition of marriage, it was to come down on the Mormons for polygamy. How ironic, then, is it for Mormons to ask the federal government to step in again, given its track record thus far. But maybe defending civil marriage - which temple Mormons don't practice - was what the Church was after in the first place. Maybe somebody thought that defending "traditional marriage" would be a better legacy than defending polygamy.
If so, bravo. Mission accomplished. It was a suicide mission but the job is now done, in the sense that the plane is in pieces and the pilot is charred beyond recognition. The difference between the kamikaze and hara kiri is that the kamikaze left more wreckage.
Bonzai, boys! Bonzai!
The problem with DOMA is that it can't trump the Constitution, which was the Achilles' Heel to Prop 8. Of course, the nine justices of the Supreme Court will make their own decision as to what the Constitution says, and the Republicans have stuffed it like a Thanksgiving bird.
