Judge: No Right to Gay Marriage
I interrupt the Paul Ryan commentary for a brief dispatch from the culture wars. A federal judge in Hawaii (of all places) has declared that same-sex couples do not have a constitutional right to get married. In a 117-page ruling, Senior U.S. District Judge Alan C. Kay held that the issue was controlled by the Supreme Court's summary ruling in the 1972 case of Baker v. Nelson (a case that Vaughn Walker side-stepped in his activist decision striking down Prop 8). (h/t ScotusBlog)
Significantly, the judge went on to hold that, even if Baker didn't control, a state ban on gay marriages satisfies the minimum level of constitutional analysis. Because there is no "fundamental right" to gay marriage, there is no need to apply "strict scrutiny" to laws restricting such marriage; rather, such laws need only satisfy the "rational basis" test. Ultimately, Judge Kay quite rightly concluded that the issue should be decided by elected representatives, not unelected judges.
“If the traditional institution of marriage is to be restructured,” the judge wrote, “it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”
Judge Kay is not a household name; but he is a Reagan appointee who has been quietly toiling away all these years. At the risk of repeating myself, judicial appointments matter. A lot.
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May '12
Re: Judge: No Right to Gay Marriage
Wow. A judge acknowledging that judicial legislation exists. Mark this day on the calendar. Thank you for sharing.
Oct '10
Re: Judge: No Right to Gay Marriage
I'm glad the judge didn't institutionalize hatred of gay people by illegitimately changing social policy. The wider population would carry that resentment for a long, long time.
[edit: Basically, my point is court legalization of SSM would entrench hatred of gay people. I was not clear in writing this comment, I'm not saying the judge should have ruled the other way. Far from it.]
Edited on August 13, 2012 at 5:49pmNov '11
Re: Judge: No Right to Gay Marriage
Destined soon to be reversed by the 9th Circuit, sitting en banc if necessary. If the 9th Circuit won't listen to the majority of the voters of the State of California, what makes you think it gives a hoot about what some obscure "off-the-judicial-reservation" Reagan appointee has to say?
Edited on August 13, 2012 at 4:09pmRe: Judge: No Right to Gay Marriage
Quite possibly, but then on to the Supreme Court -- where it will be extremely useful to have at least one lower court opinion standing for constitutional fidelity (as distinct from results-oriented activism). Gay marriage will be the issue to the issue to test Chief Justice Roberts' commitment to judicial restraint - if he really believes what he says, he will agree with Judge Kay that the issue belongs with the legislatures, and he may well get 4 others to agree with him.
Re: Judge: No Right to Gay Marriage
Right, but this isn't about demonizing gay people at all. Every state in the union could recognize gay marriage without offending the Constitution. The question is whether the Constitution requires them to do so. There's no textual basis (I would argue) to reach that conclusion.
Aug '12
Re: Judge: No Right to Gay Marriage
States not granting a marriage license is institutionalized hatred? If you were talking about sodomy laws then I'd agree with you but no one has a right to a license (which is just access to certain government benefits). No one is saying gay couples can't live together and have a life together, etc.
Also, observing the proponents of prop 8 and the opponents of prop 8 clearly shows that opponents were the ones that have a problem with hatred.
Nov '11
Re: Judge: No Right to Gay Marriage
Adam Freedman
Quite possibly, but then on to the Supreme Court -- where it will be extremely useful to have at leastonelower court opinion standing for constitutional fidelity . . . . Gay marriage will be the issue to the issue to test Chief Justice Roberts' commitment to judicial restraint . . . .
To the contrary, Adam, the inevitable reversal of this ruling is an excellent illustration of my very strange contrary point why judicial appointments don't matter all that much in the long run.
Because of institutional pressures, the federal judiciary, taken as a whole, will always "go bad" if left to its own devices. So what's needed is not a president who will make the "right appointments" (because you can't ever make enough "right appointments" when so many of the buggers "go bad" on you, Mr. Souter, Mr. Warren, Mr. Roberts, Ms. Day, Mr. Blackmun, Mr. Need I Go On?). What's really needed is a president, and especially a congress, with the gumption to shove, or punch, or kick, the judiciary back into its proper place (i.e., its place as the weakest of the three branches).
Edited on August 13, 2012 at 5:25pmJun '12
Re: Judge: No Right to Gay Marriage
Adam Freedman
Quite possibly, but then on to the Supreme Court -- where it will be extremely useful to have at least onelower court opinion standing for constitutional fidelity (as distinct from results-oriented activism). Gay marriage will be the issue to the issue to test Chief Justice Roberts' commitment to judicial restraint - if he really believes what he says, he will agree with Judge Kay that the issue belongs with the legislatures, and he may well get 4 others to agree with him. · 38 minutes ago
Indeed. The stage is getting set. I haven't been tracking this close, are there any other Circuit decisions besides the 9th's to date?
Oct '10
Re: Judge: No Right to Gay Marriage
Adam Freedman
Right, but this isn't about demonizing gay people at all. Every state in the union could recognize gay marriage without offending the Constitution. The question is whether the Constitution requires them to do so. There's no textual basis (I would argue) to reach that conclusion. · 1 hour ago
That's not what I meant. I don't say this simply to suck up to social conservatives--I really do believe that if the Supreme Court forces legalization, a lot of Americas will carry resentment of it for generations. It would make Roe v. Wade look miniscule by comparison.
Oct '10
Re: Judge: No Right to Gay Marriage
mask
States not granting a marriage license is institutionalized hatred? If you were talking about sodomy laws then I'd agree with you but no one has a right to a license (which is just access to certain government benefits). No one is saying gay couples can't live together and have a life together, etc.
Also, observing the proponents of prop 8 and the opponents of prop 8 clearly shows that opponents were the ones that have a problem with hatred. · 1 hour ago
I actually meant the opposite. It is my belief that court legalization of SSM will entrench hatred of gay people for generations.
Oct '10
Re: Judge: No Right to Gay Marriage
I guess I worded my comment wrong.
Re: Judge: No Right to Gay Marriage
Astonishing, I certainly agree that good judicial picks do not solve everything. But still, they make huge point. Take Citizens United and Kelo -- two cases with profound implications, good and bad. One vote would change the outcomes of each.That said, I'm interested in your position. How can we put the judiciary back in its place as the least dangerous branch?
Re: Judge: No Right to Gay Marriage
Joseph - ah ha, now I see what you mean! I agree.
May '12
Re: Judge: No Right to Gay Marriage
The first iteration of your comment was confusing. You generally write with much clarity so I was left scratching my head. Thanks for clearing it up. Your point makes sense.
Nov '11
Re: Judge: No Right to Gay Marriage
A few well-thought out and precisely targeted court stipping bills should get their attention.
Oct '10
Re: Judge: No Right to Gay Marriage
Right. I'm one of those people who really, really want to hash things out in popular referendums. For the courts to rule that a nihilistic political community has greater rights (in the sense of getting special treatment from the courts) than God-fearing families who work hard to take care of themselves and their communities would be a disaster.
There are God-fearing gay people who work hard and take care of their families and communities too, but their voices are drowned out by the gay left (thus my word political community). Many are afraid to speak out. A popular election would give them a voice. They could articulate a vision of gay integration that didn't involve the disintegration of straight norms, because they shared those norms too.
Edited on August 13, 2012 at 6:07pmAug '12
Re: Judge: No Right to Gay Marriage
I see what you mean now. I agree. We've seen the same thing regarding abortion. Even some liberals in the media admit in print that denying the people their voice regarding abortion has just made the issue more intense.
Apr '11
Re: Judge: No Right to Gay Marriage
Astonishing
A few well-thought out and precisely targeted court stipping bills should get their attention. · 2 minutes ago
Could you give some examples of court stripping bills that would make a bigger difference than a 6-3 conservative SCOTUS and a somewhat more conservative judiciary as a whole?
Re: Judge: No Right to Gay Marriage
Just a note to all of you--Adam, Joseph, mask et al. Reading this string, I learned at least half a dozen things. Thanks, folks.
Nov '11
Re: Judge: No Right to Gay Marriage
James Of England
Astonishing
A few well-thought out and precisely targeted court stipping bills should get their attention.
Could you give some examples of court stripping bills that would make a bigger difference than a 6-3 conservative SCOTUS and a somewhat more conservative judiciary as a whole?
I show you the forest, but you want me to talk about a couple of trees.
For reasons I've heretofore explained ad nauseam, in the long run, keeping the court in its place is infinitely more important than an ephemeral 5-4 victory in this or that particular case . . . and also more important than appointing a "more conservative" judiciary, because it won't stay more conservative.
Yes, you'll get a one-off victory here or there, but unless the other branches properly restrain the court, the continuing trend will be contrafederalism. Unless you reverse that trend, all your one-off victories will eventually be reversed.