12 August 2010

Does the Rule of Law Over Rule The Mob?

Gay marriage is always a touchy subject.  The right generally wants nothing to do with it, mostly due to it's "morals" and "christian values."  The left seems to legitimize it, but only to the point where they can buy enough votes from the true advocates who are left holding the torch without much backing from the liberal, political leadership.  So it should come as no surprise that the tragic comedy continues in Commifornia where last week, Federal District Judge Vaughn Walker threw out the votes of some seven million in favor of Proposition 8. 

The controversial ballot initiative that would have banned same sex marriage in California through a constitutional amendment, is back in the news today.  Judge Walker has lifted a stay of his ruling which means starting next Wednesday and until 9th Circus intervenes, same sex couples are free to apply for a marriage license and join us heteros in wedded bliss.  Personally, I say good for them!  I'm sure that isn't exactly what you were looking to hear now was it dear reader?  

Let us face some facts.  First, who cares!  Conservatives claim to be for individuals and against government intrusion, yet they decry against a judge who actually ruled in favor of the individual.  Friends and family know how I feel on the subject, it's none of the government's business on who parterns and who weds.  No government agency should craft any policy for anything referencing marriage or wedding [emphasis added].  Marriage is strictly religious and should be left to various churches.  If you want to be married, go to a church, if you want a legally recognized, civil law unity, go to a court house.

In Judge Walker's opinion, he stated:
“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.  Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”
Further in his opinion, the Judge said that "The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const Amend XIV, § 1. Due process protects individuals against arbitrary governmental intrusion into life, liberty or property. "

Basically, the judge said that the rule of the mob, in this case 52% of voters, cannot deny rights to the other  48% who disagree with them.  The US is not a democracy, it's a republic, relying upon the rule of law to balance power between those who have it (same sex marriage opponents) and those who don't (supporters).  In this case, Judge Walker stepped in and showed that due process cannot deny rights to anyone based upon race, sex, creed, religion, or sexual orientation.  Further, the privileges and immunities of any individual cannot be abridged, arbitrarily, by any one state or another.  Now, I do want to throw in two caveats: 1) I am only an arm chair lawyer and 2) I think there are some serious Tenth Amendment issues that are not discussed in the ruling.  Since the US Constitution is really silent on the issue of marriage, does it give the FedGov any ability to regulate it?  If not, that means the FedGov should have no say, and it is to be left to the states and the people (X Amendment).  

Conservatives can't have their cake and eat it too.  Either you believe in individual liberty, even when you don't agree with the act (my personal view) or you are a hypocrite on this singular issue.  The religious right continuously condemns the government for "forcing" same sex marriage on us, when they could simply force the issue that the government has no reasonable right to regulate the act in the first place.  Judge Walker could have saved a lot of headaches had he just thrown out every single "marriage" law on the books, but then we would have surly seen appeals and reversals of such a radical ruling. 

That would have made for a real return to Constitutional governance. Striking all reference to "marriage" out of any state or federal code in his district would mean that laws would have to be rigorously adjusted.  Think what implications that could have had.  No more marriage penalty in the tax code.  No more class warfare between married parents and benefits for "single" parents.  None of that would exist, all because now, the state and federal governments would have to craft new laws that do not discriminate against the individual or the individual legal entity (what marriage really is).

I do admire the passion by the right to preserve the traditions and sanctimony of marriage, but there are bigger fish to fry than religious superiority.  Further, even as someone that does not agree with homosexual marriage on a religious level, God told us not to judge.  It happens to be one of those pesky ten commandments the religious right seem to conveniently forget about.  As far as those who put the initiutive on the California ballot, it's a political stunt!  Learn it, live it, love it!  Those officials seeking office are trolling for votes, and only the small religious right base care so deeply about this issue.    

Look, if someone wants to be gay, are you going to stop them?  Who cares if it's learned, hereditary, or taught, what snowflakes in hell difference does it make to the impact of your's and my daily life?  Simply because we happen to walk past someone who's better dressed with more cologne or happens to play sports better than us?  Stop being part of the mob.  Realize the Judge got this one right, even though on a tenth amendment issue he may be wrong.

As long as the world doesn't produce more Prez Hilton's who shit rainbows and flaunt their lunacy, what's wrong with MORE individual freedom?  Please, enlighten me, I'll be waiting to the twelfth of never. 

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