To Correct Some Misapprehensions The Right-Wing Seems To Be Laboring Under


Judge Walker issued a 136-page ruling (available here) declaring that Prop H8 was a violation, separately, of BOTH the due process AND equal protection clauses of the federal Constitution, AND that the claims of the anti-equality side couldn't even stand up to the "rational basis" standard of review, which is the least stringent standard!  Additionally, he set forth a wonderful list of "findings of fact" tearing apart the secular arguments against marriage equality ("findings of fact" in a case are given very heavy weight in appeals to a higher court, while "findings of law" are basically tossed and redone from scratch on appeal, so these findings are a lasting gift to our side).  This is an absolute, unqualified win for the forces of equality in this state and the country.  No word yet (that I've heard) as to whether or not Walker will issue a stay pending appeal, as requested by the anti-equality side.  [EDIT: Walker has issued a temporary stay pending hearings on a longer-term stay]  So far, it seems that Prop H8 has been overturned entirely.  Next step is the 9th Circuit, then after that, SCOTUS.*

It's been highly entertaining, if a bit predictable, watching wingnut heads explode over the decision.  I've been following the coverage on Right Wing Watch (available here; refresh for updates as they come available) and it is every bit as over-the-top and panicky and filled with hateful bile as you might expect.  Some select quotes:

Focus on [Your Own Damn] Family:
Judge Walker’s ruling raises a shocking notion that a single federal judge can nullify the votes of more than 7 million California voters, binding Supreme Court precedent, and several millennia-worth of evidence that children need both a mom and a dad.
Concerned [Self-Hating] Women for America:
Judge Walker’s decision goes far beyond homosexual ‘marriage’ to strike at the heart of our representative democracy. Judge Walker has declared, in effect, that his opinion is supreme and ‘We the People’ are no longer free to govern ourselves.
CWA CA Chapter:
Today Judge Vaughn Walker has chosen to side with political activism over the will of the people. His ruling is slap in the face to the more than seven million Californians who voted to uphold the definition of marriage as it has been understood for millennia.
Family [Discredited] Research Council:
It's time for the far Left to stop insisting that judges redefine our most fundamental social institution and using liberal courts to obtain a political goal they cannot obtain at the ballot box.
Alliance [of Hateful Heteros] Defense Fund:
It’s not radical for more than 7 million Californians to protect marriage as they’ve always known it. What would be radical would be to allow a handful of activists to gut the core of the American democratic system and, in addition, force the entire country to accept a system that intentionally denies children the mom and the dad they deserve.
American [Hetero, Monogamous, Childbearing] Family Association:
This is a tyrannical, abusive and utterly unconstitutional display of judicial arrogance. Judge Walker has turned ‘We the People’ into ‘I the Judge.’ “It’s inexcusable for him to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters.
Notice a pattern here?  It's all variations on one theme: the Activist! Judge! overturning the Will! Of! The! People!  And after reading these, it becomes quite clear that this wingers need a remedial course in American gov't and various types of governing systems.

As a Twiend of mine pointed out after seeing Walker's ruling, now is a good time to ruminate on the difference between a raw democracy and a constitutional republic.  The USofA is a constitutional republic.  Features of a constitutional republic include: a founding document which lays out a meta-framework of guidelines and principles for establishing the rules and laws of the land, and a limited type of democracy that allows the citizenry at large to elect representatives, who then go on to do the actual lawmaking independent of direct interference by the citizens who elected them.  A raw or pure democracy, on the other hand, is characterized by every decision being made by general election, or "the will of the people is the law".  

Since the US is a constitutional republic, the directly-expressed "will of the people" (mind you, that's the will of 52% of the people, not exactly a resounding majority; I wonder why they're not screaming about the will of the 6.5 million people who voted against Prop H8 in between shrieks about the 7 million who voted for it?) cannot overrule the meta-guidelines laid out in the foundational document.  And I don't know what Constitution they're reading while they're having their little headsplosions, cause my copy has these nifty bits about the government not impeding citizens' rights without due process, and having an obligation to protect the rights of all citizens, and it seems like Walker's copy corresponds with mine.  

I mean, really, when the judge's decision extensively cites not only the Constitution (with which conservatives seem determined to wipe their asses *coughBushAdministrationcough* right up until a progressive does something they don't like, at which point it's all THE!CONSTITUTION! YOU!CAN'T!DO!THAT! whether or not the document in question supports their freakout) but a not-insignificant body of established case law as precedent, the whiny bile of right-wingers is pretty clearly exposed for what it is: petty bigotry trying to cover itself with the flimsy shield of deliberate misinterpretation of and selective inattention to the Constitution under which all our other laws fall.

So here it is, right-wingers: Go and reread the fucking Constitution.  Nowhere in there is there a right, either explicit or implied (and no, you cannot pull the 10th amendment on this one, because due process and equal protection are in the federal Constitution, and the 10th says all powers/responsibilities not enumerated herein go to the states), of the people to vote to deprive other citizens of their rights in violation of the Constitution.  Period, the end, that is all, THE GENTLEMAN WILL SIT!

*According to a legal-issues reporter who's been following the Prop H8 trial and who I've been following on Twitter, @FedcourtJunkie, the State of CA is not going to appeal this decision, and the 9th Circuit may decide that the pro-H8 campaign doesn't have standing to appeal, saying: "Btw, Yes on #prop8 has serious standing problems for an appeal. This will become a huge issue very shortly- they might not be able to appeal".  So we may or may not see this go any further.  


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