Wednesday, August 04, 2010

Federal judge strikes down Proposition 8

A gay federal judge in California has just ruled the California's proposition 8--in which voters determined that marriage should not be re-defined to include same sex couples--is unconstitutional.

As I understand it, the ruling was based on the fourteenth amendment, section 1 of which says
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This amendment says that states shall not make laws that abridge the privileges of U.S. citizens without due process of law. It does not spell out what these privileges or rights are. The Constitution gives us numerous rights--the right to freedom of religion, freedom of speech, freedom of the press, etc., but there is absolutely nothing in the Constitution that gives people the right to marry someone of the same sex.

Using the logic of this judge, it would seem than almost anyone with enough money to hire a good law firm, could assert a right--the right to marry multiple people at the same time, the right to marry one's dog, the right to marry one's sister--and appeal to the fourteenth amendment to protect that imagined right!

This is the essence of judicial activism in which the judge--after two hundred years--suddenly discovers rights in the Constitution that no one has ever seen before! This judicial activism destroys Democracy by overturning the will of the people on the pretense of Constitutionality.

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