On Overturning Prop 8

The judge — who is gay and should have recused himself — justified his ruling in part by noting that no “demonstrated harm as a result” of same-sex marriage could be shown, which could have made blocking it justified. This is undoubtedly true but also astonishingly irrelevant. The law could conceivably require that everyone wear a wizard’s hat every Saturday at 6 PM; the point is not that it is “good” or can be demonstrated to be “harmful,” but whether it violates any existing protections.

The more serious argument, then, is that Proposition 8 violates the equal protection clause of the 14th Amendment — which has been abused to justify everything from affirmative action to tax increases. The judge wrote that “gender no longer forms an essential part of marriage” and that it is not a component of it that can be taken into account when defining it under the law. I happen to agree with him, but that’s something to tell to a legislature or the citizenry, not to a judge, who is there only to decide whether everything is being enacted according to an enumerated process. Californians are entitled to decide for themselves what’s essential to marriage.

And that’s what’s at the bottom of this: justice, properly understood, is a process, not a result. The law is not there to bend and bash until you get what you want from it. In a free and ordered society, we simply have to resign ourselves to the fact that the legislature is sometimes wrong and that the culture is sometimes a bit off. If your interpretation of the Constitution just so happens to align with all of your political views, you’re probably interpreting it wrongly. I want to see same-sex marriage enacted in the United States. But I want it to be done lawfully and orderly, not by judges who think it’s their job to save the world rather than to follow the law.

More here.

1 Response to “On Overturning Prop 8”


  • The judge — who is gay and should have recused himself —

    That’s as far as I read. As a straight man I didn’t feel like I could judge fairly the arguments in the case, so I recused myself.

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