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Fri August 27, 2010
Judicial Overreach and the Democratic Process
By Richard Nelson
Murray, KY – The issue of marriage and equality is in the news again after a California judge overturned the controversial Proposition 8. In Kentucky, the 6th US Circuit Court of Appeals recently upheld the ban on Ten Commandment displays in county courthouses. Commentator Richard Nelson says both decisions were left to a single or small group of judges rather than being open to the democratic process. For contentious issues like these, he proposes judges show restraint, not overreach.
Advocates of traditional marriage were trampled earlier this month by a San Francisco judge who struck down California's constitutional amendment which keeps marriage between one man and one woman. Judge Vaughn Walker apparently missed the memo about the seven million voters who support marriage between one man and one woman. Memos about the need for judicial restraint and the necessity for judges to recuse themselves in cases where there might be a conflict of interest apparently did not reach his desk either.
Over the last year, we've seen judges subvert the democratic process by substituting their personal preferences and policy choices for duly enacted laws. Most notably, in July, Federal District Judge Joe Tauro struck down the 1996 Defense of Marriage Act, which garnered the votes of 427 Congressmen and was signed into law by then President Bill Clinton. Another federal court insisted that Ten Commandments displays are off limits in two Eastern Kentucky courthouses, perhaps a not-so-subtle indication that judges often confuse themselves with the Almighty Lawgiver Himself.
Judicial restraint is clearly in short supply these days, particularly on the federal bench, but now we're finding that in this most recent case of judicial overreach, Judge Walker had a conflict of interest.
The biggest out-of-the-closet secret since the ruling is that Walker is in a relationship with another man a detail which legal experts say should have led to his recusal. Walker failed to disclose his potentially disqualifying bias since it could benefit him and his partner should they choose to get married. Amazingly, Walker is now telling traditional marriage advocates that they cannot appeal the ruling because they lack standing. This is like a referee telling the ball team that since they are down at halftime, they cannot come back for the third quarter since they are losing. Such things happen when the referees are no longer objective and become allies with one of the teams.
Dale Carpenter, a University of Minnesota constitutional law professor told Fox News, "What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court, and then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that." Carpenter, by the way, supports same-sex marriage.
Additionally, Judge Walker discredited the testimony of traditional marriage and family formation expert David Blankenhorn who was one of the two witnesses defending the marriage amendment (four other witnesses declined to testify because they feared for their safety). Blankenhorn's testimony, according to Walker, "constitutes inadmissible opinion testimony that should be given essentially no weight." Walker also took a swipe at the faith community when he said, "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."
Walker's actions discredit the judiciary, which should be in the business of "calling balls and strikes" as Chief Justice John Roberts once said. When they get in the game and take sides, they become something other than a judge. The biggest losers in this sad story are the voters and the democratic process itself. Why vote if one judge can cancel the vote of seven million people? Why contribute to a cause if it's likely to be defeated in court? Why care?
Walker's actions were so egregious that the reliably liberal 9th U.S. Circuit Court of Appeals put a hold on Walker's ruling until December, thus preventing gay marriages from taking place this week. While Judge Walker once again opened the door to gay marriage in California, he cannot entirely overrule the verdict in the court of public opinion: marriage is between one man and one woman, and the democratic process is the most equitable way to decide such contentious issues.
Richard Nelson is a policy analyst with The Family Foundation of Kentucky. He resides in Cadiz with his wife and children. If you have an opinion, interest or review you'd like to share with WKMS listeners, see guidelines on the commentaries page of our web site and send us an email.