Citizens versus the elites

The ruling yesterday regarding California’s Proposition 8 is profoundly disturbing for a variety of reasons legal and philosophical. First a brief recap.

Perry et al v. Schwarzenegger et al, sought an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment. Judge Walker’s conclusion is that Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license, hence a violation of the US Constitution.

On the legal level, Judge Walker turns facts upside down with a view that the state failed to justify discrimination against gays, and assumed the state had no interest in said discrimination therefore the proposition fails the Constitutional test. The judge confuses regulation with discrimination.

Sovereign states may pass law, and regulate their societies as they see fit within the confines of their social contract as set forth in the state constitution. If the state wishes to regulate marriage on the basis of thousands of years of custom and tradition it is within their purview to do so. The common law of England and the legal tradition in America is based on custom and tradition.

If the state wishes to regulate medical doctors, police officers, or teachers in a certain way it may do so. The fact that these regulations may work against the wishes of a political interest group is unfortunate, but inevitable. The same holds true for marriage. The state has a right to regulate marriage. Citizens of the state have a right to pass law through initiative at the ballot box.

We have laws against sodomy which is viewed as a sin by Christians and Muslims alike. Homosexuality is viewed as a sin by Christians and Muslims. The federal courts are telling the sovereign state of California and it’s people they are unable to regulate their societies based on moral conviction and tradition because at some point there may be discrimination. This is a legal absurdity.

Perhaps legal scholars have pushed to far by including sexual orientation as a legally protected behavior?

On a social level, we have a judge overruling the wishes of the people as reflected by the passage of Proposition 8 in a legal and legitimate manner.  A proposition that passed muster of the California Supreme Court. One judge cannot arbitrarily over rule the will of the people. This sort of elitism leads to disrespect for the law, and takes California and the nation down a path to ungovernability where every law opposed by a special interest group must be adjudicated up to the Supreme Court.

The founders created the judicial branch to guard against abuses of power and law by the executive. To arbitrarily overturn law passed by the people, in whom the federal constitution vests all power, is a capricious abuse of power and must not stand.