Monday, August 16, 2010

Rethinking My Reflexes: Gay Marriage, the Courts, and the Law

Note: I came to disagree with myself profoundly on marriage equality. NC Amendment 1 would have written discrimination into the state constitution by banning marriage equality. Support for Amendment 1 is why I left the GOP. More broadly, I now reject the view I used to hold regarding the role of the Judiciary. I was wrong across the board on this one. GG 2020

On August 4, Judge Vaughn Walker, a George H.W. Bush appointee, declared that California’s Proposition 8 violates the United States Constitution under the Due Process and Equal Protection clauses of the fourteenth amendment.

My initial reaction was instinctive and emotional. I immediately posted on facebook: "Glad to see a proper constitutional argument knock down another openly discriminatory law!"

I’ve had a week and a half to reflect on it, and in retrospect, I think that I was wrong. I don’t know that I was wrong (the way that I know that I love my children, for example), but I think that I was wrong (the way, say, that I think that forced wealth redistribution is immoral).

Upon reflection, I think that it was judicial overreach, even though I the outcome, gay marriage, is something that I support.

I keep getting this unsettling feeling. It’s partially worry that the decision will set back gay rights in the long run, but more than that, it’s a growing concern about the mutability of existing, written law and Ben Franklin’s warning about a “republic, if you can keep it”. When one branch of government regularly oversteps its bounds, it endangers the system of government itself. It just, well, feels off-kilter.