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August 05, 2010

The Prop 8 Decision And The Gulf Between The Legal Class And Citizens

I actually read all 1 million pages of the decision (okay, it’s like 186 pages but trust me, it felt like a million). As I went on my rage grew at the contempt in which Judge Walker holds the process of a free people deciding the form their government will take, the plain meaning of words and social structures that have evolved over many centuries.

Let me start by saying this isn’t a complete take down of the decision and that I’m pretty much a lukewarm supported of same sex marriage. So long as it is freely and democratically instituted (or I used to be, more on that in a moment) I’m kind of ok with it. What I am unalterably opposed to is judges imposing some new found right upon people or distorting the concept of marriage and the right of the people to define it, to suit an equal protection cause of action.

With that said, what struck me most about the decision is how eminently sensible it is from a legal standpoint and how divorced that standpoint is from the precepts of a republican form of government. Decisions like this are reached by judges finding facts and identifying/applying the relevant laws. Sounds easy in the abstract but how do judges do this and how do they do it in a theoretically consistent way? They use various “tests” which are often established by justices in Supreme Court cases.

In this case the Judge found that marriage was “a fundamental right” as part of the plaintiffs Due Process challenge. Once he made that determination he went on to examine if prohibiting same sex partners from exercising that right violated the Equal Protection Clause of the 14th Amendment.

This is where the famous 3 tiers of scrutiny come in. Since the judge found that “a fundamental right” (pg 109 of the decision) was at issue he was obligated to use the “Strict Scrutiny Standard”. This is the hardest one for the defenders of Prop 8 to win on because it requires

“The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest”

The easiest grounds for defenders of Prop 8 would have been the lowest threshold, the Rational Basis test.

“The government need only show that the challenged classification is rationally related to serving a legitimate state interest.”

The amazing thing about Walker’s decision is that while he recognized that to survive, Prop 8 would have to meet the Strict Scrutiny standard he said it didn’t even meet the lowest standard of ‘rational basis’ (pg 117 of the decision).

This is where the divorce between the legal priesthood and many people starts.

Just look at and unpack some of the assumptions that lawyers, judges and a lot of people simply accept, without question, to get to this outcome…laws have to be rational or related to a state interest, “voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough.” (page 24 of the decision) and that judges and only judges, (not the legislature, not the executive, not the people) can decide if a given law meets these judicially manufactured standards.

When exactly did we decide that judges are the sole arbiter of what laws are ‘rational’? And by the way, when did we even agree that laws had to be ‘rational’ in the first place and that ‘legitimate state interests’ was required for a law to survive challenge? What part of the Constitution requires these tests? What law authorizes them?

The short answer is, none. In fact the whole notion of this multi-layered scheme goes back to a Supreme Court decision from 1938. Well, not even a case really but a footnote in a decision.

A judicial footnote, written by one judge, in a case most people have never heard of (US v. Carolene Products) is the basis of the system we as a nation use to determine the Constitutionality of many of our laws.


It’s funny but the nation survived almost 150 years without this set of standards (70 years if you start counting from the adoption of the 14th Amendment). Yet now, it’s taken for granted as if it were part of the original document and ratified in 1788. Just part of the furniture, always been there, pay no attention to it.

And this notion that voters provide a judicially approved rationale for their votes comes from another Supreme Court case...Romer v. Evans not a democratically enacted standard.

Now, this all makes perfect sense to lawyers. They are trained in this system; they understand it and they believe it in. It just makes sense to them (well, most of them). They never question its foundations or the assumptions upon which its legitimacy is built.

The problem is no one outside the legal/judicial monastery ever explicitly signed off on this deal, you know, consented to any of it. Hence the anger many people, myself included feel about judicial overreach.

I think most people instinctively ‘get’ there are areas where judges shouldn’t be going. After all, didn’t Hamilton assure everyone in Federalist 78 that the judiciary could never endanger liberties?

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter

In retrospect, that’s not Alexander’s finest moment.

Now, do I think most people sit around reading judicial opinions, considering the source of Equal Protection tests or reflecting on Hamilton’s view of the Judiciary? Not for the most part. Most people are far too sane for that. I do think however that most people have an innate feel level about what’s right and wrong, how the balance of power should fall between the branches of government and also between the government and the people.

The problem is too many in the legal world have lost sight of the fact that the edifice they and their professional ancestors have created is not part of the grand societal compact that many people think we are or should be operating under.

As a political body we have for too long conflated the legal structure that has grown layer by layer like a coral reef, with the underlying sources of legitimacy…the Constitution, the will of the people as expressed by their representatives or through popular vote. In short, the consent of the governed.

This isn’t “a bash lawyers!” post. That’s too lazy. First, not all lawyers and judges operate this way. Second and most importantly, it’s our fault as a nation for letting this happen. If we want the authority back from judges for managing our affairs, we need to accept the responsibility for abdicating them in the first place.

Gabe is right
that this may be very hard to overturn on appeal because it complies with the rules of the game as currently written. This decision isn’t that big of a deal in the sense stuff like this happens every day, this is how courts across the country work. Most of the time it’s fine because we need to have some guidelines for judges. Saying ‘follow the Constitution’ sounds nice but it’s not a practical solution because not every case is clear cut and how the Constitution should be applied is usually something reasonable people can disagree on.

The problem is, when it comes to big, sweeping cases, the courts need to exercise some modesty. Unfortunately, “modesty” is not a quality one normally associates with the kind of people attracted to positions of power.

For a lot of people (certainly not all, and in fact not nearly enough), the outer edges of judicial usurpation are being reached. This does not mean insurrection or revolution. People who talk that way are idiots. So how do we impose some modesty on an out of control legal system? Personally, I now support the Federal Marriage Amendment.

I hate the FMA for a number of reasons. Mostly because I don’t think the issue should be federalized but since that’s the field we are forced to fight on, well, it’s not ground my choosing but activists and Judge Walker eliminated my choice. I know some gay people who would like to get married. I’d like them to be happy and have what they want but not at the cost getting it this way entails.

I really hate messing with the Constitution and we can’t simply keep trying (and likely failing) to amend it every time there’s a lousy court decision. We need to come up with another way to restore the proper balance between the branches of government and the overall relationship of the people and the government.

As with most things political, I’m not optimistic.


Added: But wait, there's more! Ben points to this post by John Yoo on the decision. He gets to another angle I wanted to take on but there's just too much here for one post. People will be writing about this for years.

Yoo goes after Judge Walker for his social science approach to the decision and the way he took it upon himself to balance the good and bad out comes.

I actually have a Word file with 6 pages of passages I copied and pasted that I could comment on. I'll just give one quick one.

Walker says one reason Prop 8 doesn't meet the rational basis test is the financial impact on the state (Page 90 of the decision)

64. Proposition 8 has had a negative fiscal impact on California and local governments.

Assume that's true, so what? People trade monetary gain for other considerations all the time. It's often a perfectly rational decision. Where does Walker get the notion that he and he alone is better suited to make that determination than the people of the state?

digg this
posted by DrewM. at 02:02 PM

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