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Who overturned Prop 8?

So, about that liberal activist judge who overturned Prop 8 yesterday:

This “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for for advocates of marriage equality that those forces were only able to block Walker twice.

Josh Green of the Atlantic notes a pattern: the federal judge in Boston who struck down a significant portion of the Defense of Marriage Act, ruling that it denied gay and lesbian couples the federal benefits afforded to straight couples, was appointed to the bench by President Richard Nixon. And the chief judge of the Iowa Supreme Court who wrote the unanimous decision striking down that state’s marriage ban was appointed by Republican governor Terry Branstad, who was just renominated for governor by Iowa Republican voters. Of course, Nixon and Branstad don’t have the conservative cred of Reagan and Meese.

By Ezra Klein  |  August 5, 2010; 10:35 AM ET
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Will "Impeach Judge Walker" become a new GOP litmus test? Stay tuned...

Posted by: ath17 | August 5, 2010 10:56 AM | Report abuse

The difference between a conservative who actually understands constitutional law and one who parrots talking points? Or is this just a demonstration that the Republicans still have a lot of work to purge the unbelievers/socialists in their midst?

Posted by: Jaycal | August 5, 2010 11:01 AM | Report abuse

Some observers noted this pattern exactly one year ago, with one noting that "the question in the minds of citizens is becoming less one of Republican versus Democrat and more one of right versus wrong — or more specifically strict versus ephemeral interpretation of the Constitution." The same pundit also opined
"with all due deference to other opinions, the 'swing vote' during this session of the [Supreme] Court – and more so in the next – will be not the ideological middle; rather, it will be a staunch ideologue who must reconcile faithfully-held (and vocally, although often not eloquently, presented) political views with the duty to provide the best, most faithful, interpretation of the Constitution."

That second comment is important, as yesterday's ruling has little practical impact until the Supreme Court concurs. My hunch is that there will ultimately be concurrence, but for reasons far different from those enumerated in yesterday's judicial opinion. I'll even go out on a limb and predict that Democrats will absolutely despise the final concurring opinion: today's Progressive Democrats typically don't tolerate rights which are upheld uniformly.

Posted by: rmgregory | August 5, 2010 11:14 AM | Report abuse

"today's Progressive Democrats typically don't tolerate rights which are upheld uniformly"

Examples, please...

Posted by: mschol17 | August 5, 2010 11:34 AM | Report abuse

For mschol17: The decision in Citizens United v. FEC, which upheld uniformity of freedom of speech, is an excellent example. Although the decision was supported by the ACLU, Democrats (including the President) oppose it, preferring that freedom of speech be granted only under conditions defined by the "majority."

Posted by: rmgregory | August 5, 2010 11:52 AM | Report abuse

Judge Walker is also a homosexual:

Posted by: clawrence12 | August 5, 2010 12:34 PM | Report abuse

If they can overturn the will of 7 million voters who voted for this, what can't they do?

Posted by: JBfromFL | August 5, 2010 12:39 PM | Report abuse

JB, civil rights are not subject to the "will" of the majority. You have them by virtue of being either a human being, or a citizen of this country, depending on which right is being considered. (For example, freedom from government interference or restriction of speech, religion and the press apply to all individuals in the country, whether they're citizens or not; the right to vote depends on whether you're a citizen.) I would guess the right to equal treatment in terms of government-provided benefits related to marriage would be one of the citizenship-based rights, but I'm not sure. In any case, the right to equal treatment under the law is a constitutional right, and is not subject to a vote. Whether it was 7 million or 70 million - or seven - people who voted for it is irrelevant.

Posted by: KarenJG | August 5, 2010 1:10 PM | Report abuse

I know that Ronald Reagan is held up as some god of conservative purity ("WWRD?"). But he raised taxes as President at least 7 times (the 1982 tax increase was the largest in 40 years at the time), bailed out social security, "cut and run" from terrorists in Lebanon, and gave amnesty to illegal aliens. And don't get me started on Governor Reagan -- not only did he raise taxes there too, he supported the rights of gay and lesbian teachers and expanded abortion rights.

In today's GOP, Reagan would have been primaried faster than you can say Dede Scozzafava.

Posted by: vvf2 | August 5, 2010 1:24 PM | Report abuse

JBfromFL, if the "will of the majority" determined civil rights, you'd probably still have "whites only" schools and businesses in parts of Mississippi.

Posted by: vvf2 | August 5, 2010 1:26 PM | Report abuse

That was a nice slight of hand. The ruling said that all people were equal under the constitution, and then you criticized progressives for not believing that corporations have the same free speech rights as individuals. One of these things is not like the other.

You back Citizens United, so does that mean you oppose Prop 8?

Posted by: mschol17 | August 5, 2010 2:15 PM | Report abuse

- - KarenJG - - would you be just as supportive of the courts instead of a "will of the majority" if the courts had upheld Prop 8? Or do you change your point of view based on what suits your political agenda?

FYI there is nothing in Article III of our Constitution that grants the courts the power to uphold (pass) or strike (veto) laws that were enacted by legislatures. Such powers are specifically authorized for the executive branch, constitutionally speaking.

- - vvf2 - - Why are you picking on Mississipi? Are you aware that (according to Census data), Mississippi has always had the highest percentage of Afro-Americans of any state or territory in the Union? Are you prejudiced against Southerners?

Posted by: RobinHood_Jr | August 5, 2010 4:28 PM | Report abuse

RH jr, I'm not sure what you're trying to ask me, but I'll answer what I *think* you're trying to ask, and if I guess wrong, I'm sure you'll let me know.

If a court held that civil rights were subject to majority vote, I would think that court was wrong. I think that marriage (as a civil status rather than a religous status) is a civil right. Or, to be more precise, I think the state benefits associated with a marriage (for example, inheritance, or Social Security spousal benefits, or tax filing status - things like that) are subject to the 14th amendment. I.e., they can't be restricted based on approval or disapproval of the marriage partners. If the benefits are available to any citizens, they must be available to all citizens. Equality under the law.

Because I believe this, I can't imagine under what circumstances a court could find that a majority vote could deny a specific group of people a civil right. Maybe they could come up with one, but I can't imagine what it would be. But then, I'm not a lawyer, so maybe some lawyer could posit a rationale which would permit a civil right to be subject to a majority vote.

Is that what you meant to ask?

As far as the court "passing" or "vetoing" a law, I don't think that enters into it. The courts do have the right to ascertain whether a law violates the constitution, although this court's ruling on that isn't the last word on it, the Supreme Court has the final say on whether this law (or any other) violates the Constitution. I don't always agree with their opinion, but that doesn't mean squat, because the Constitution means what ever *THEY* say it means. Even if they're wrong, wrong WRONG!! ;-)

Posted by: KarenJG | August 5, 2010 5:42 PM | Report abuse

The real question is:

What ever happened to Proposition 7?

Posted by: kapryt | August 6, 2010 12:02 PM | Report abuse

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