The California judge may have left himself out in left field on voiding Proposition Eight and the chances he will be overruled on the SCOTUS level (not the 9th Circuit) are quite good, though given the makeup of the court it could rule that marriages between men and kangaroos are legal. Article I, Section I of the U.S. Constitution: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The Defense of Marriage Act (DOMA) (Pub. L. 104-199, Sept. 21, 1996, 110 Stat. 2419) is a federal law that denies federal recognition of same-sex marriages and authorizes states to refuse to recognize same-sex marriages licensed in other states.
The California judge thought he was interpreting the California Constitution, but he was actually ruling part of the U.S. Constitution to be un-Constitutional, i.e., that Congress actually has no power to define/enact anything. The courts interpret the laws but they cannot make laws, in this case nullifying DOMA. Marriage has been defined in the federal statutes, and unmistakably so. No same-sex marriage that has ever been codified anywhere in this country is a marriage that is legal. To enhance the definition of marriage, most states have defined them in their Constitutions anyway as being between one man and one woman, or at least one at a time.
If this judge’s ruling should stand, marriage will be what anyone says it is because he has ruled that the laws passed by Congress do not have to be obeyed, and by extension the laws in any of the states. It’s possible that given the right court the DOMA could be declared un-Constitutional but that’s at least a ways down the road. If that happens, such things as legal polygamy and legal incest (check out the Netherlands) and other types of multi-partner marriages or arrangements will be in line. Obviously, they could not be turned down.
As a practical matter, the Congress has spoken and only the Congress can undo what it has done, as was the case with Prohibition (Amendment 18). Under Prohibition, a citizen who insisted that his right to drink had been violated could have sued. I don’t know if that happened but the bubbly returned 14 years later only through a Constitutional amendment undoing another amendment. This should be the procedure in this matter with respect to law.
This may be the dumbest thing the judge wrote: Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. This, besides being quite obviously off-the-wall (at least with normal people with normal feelings and a knowledge of the difference between genders and the reasons for it and the results of it), indicates no notice of physiology, especially with respect to children and the need to protect them legally. The ruling was based on political correctness, a national damnation that hopefully will soon be abandoned for the lunacy it is. The judge discovered a whole new set of victims, the most glorified folks in the country today.
Most of the 138-page decision was taken up with an examination of sociological evidence for and against same-sex marriage, according to MercatorNet. Judges supposedly rule on the law and not what they think about it. Since Judge Vaughan Walker is himself a homosexual, his attempt at actually codifying his own behavior is all the more egregious. It might have taken two pages to deliver an opinion based on law, but apparently Walker had an agenda in this era of activist judges attempting to overturn the Constitution and legislate from the bench. He was determined to negate what the majority of Californians had recently written into the state Constitution, setting the matter in concrete…138 pages – Egad!
One supposes the judge was declaring that women haven’t been equal to men with respect to marriage but then gave the world 138 pages proving that men are equal to men and should therefore be married to each other. Men have always been equal to men. Where do they find these people?
The most glaring recent example of judicial legislating was graphically shown last year in the accession to the Supreme Court of Justice Sotomayor. While she was a federal judge and without exercising the usual protocols in making a decision a few years ago, she ruled that qualified white firemen in a Connecticut city should be denied promotion because they were white. In 2008 at the same time the Supreme Court was in the process of overturning her decision, President Obama appointed her to the SCOTUS and a democrat-controlled Senate confirmed her. Go figure.
An even more recent – last week – example of judicial tampering was seen in the Senate confirmation to the SCOTUS of Elena Kagan, who, while she was the law-school dean at Harvard, denied military representatives access to her campus in direct violation of federal law. One would expect the dean to know the law and she probably did, but her agenda trumped the law and that’s the paradigm for the way she will rule on the highest court in the land. Where do they find these people?