[Vision2020] Equal Protection arguments and judicial activism

[David M. Budge]

Wayne, Joan, et. al.

Let me preface my argument by making sure that everyone clearly 
understands my position.  My argument is not about minority rights but 
legislative and judicial process.  I am against both the death penalty 
and the Federal Marriage Amendment as well as the constitutional 
amendments of the 13 states that now hold that marriage is between one 
man and one woman - such as here in Montana. These 13 constitutional 
amendments are the "blowback" to which I refer.  I'll address that 
later.  Recall also, that I said that decree by judicial fiat was "bad 
government" and I did not, nor do I now contend that it is wholly 
inappropriate.  It does have a critical place in the promulgation of law.

The ruling that the San Francisco judge made was based on the the 
rationale of Brown v the Board of Education where the judge specifically 
stated that the California statute explicitly violated the "serarate but 
equal" standard disallowed under the 14th Amendment via precedent.  The 
State of California argued that California's domestic partnership laws 
were explicit in equality of marriage rights hence there was no 
discrimination.  All rights being otherwise the same, the judge falls 
into the matter of semantics.

The judicial use of both the Due Process clause and the Equal Protection 
clause have been used, as Joan noted, to reconstruct state laws and the 
constitution in ways that are antithetical to the construct of morality 
and democracy - as in what happened in Bush V Gore.  Morality, as we all 
know, is both subjective and transient in its definition.  Hence, the 
arguments about polygamy and sodomy are relevant and at core to the 
conversation.  Understanding that there are those who feel that 
homosexuality is immoral, under a democratic system we must allow that 
precept while not accepting it - else we lose the foundations of civil 
construct to nihilism.  So it serves us to discuss judicial activism in 
a broader context.

One must needs also remember that judicial precedent is not in a vacuum 
and the interpretations of one case affects another.  In the case last 
year, Lawrence V. Texas, where the Supreme Court (SCOTUS) struck down 
the texas sodomy laws, Justice Kennedy use the 14th Amendment as the 
primacy of his majority opinion.  This gets a little confusing because 
of the notion of what lawyers call "assumptive due process."  This is 
the legal concept that means that some things are so apparent that the 
the arguments of due process or lack thereof are not necessary in 
judicial arguments.  From this we have had achieved the extra 
constitutional "right" of privacy in a measured degree.  As in Lawrence 
v Kansas, Justice Kennedy inferred the right to privacy from cases such 
as Roe v Wade.  But their is no mention of "privacy" per se in the 
Constitution.  Kennedy went one step further in his opinion stating that:

"The case does involve two adults who, with full and mutual consent from 
each other, engaged in sexual practices common to a homosexual 
lifestyle. The petitioners are entitled to respect for their private 
lives.  The State cannot demand their existence or control their destiny 
by making their private sexual conduct a crime.  Their right to liberty 
to engage in the Due Process Clause gives them a full right to engage in 
their conduct without intervention of the government. 'It is a promise 
of the Constitution that there is a realm of personal liberty which the 
government may not enter." Casey, supra, at 847.  The Texas statute 
furthers no legitimate state interest which can justify its intrusion 
into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clause of the Fifth 
Amendment or the Fourteenth Amendment known the components of liberty in 
its manifold possibilities, they might have been more specific.  They 
did not presume to have this insight.  They know times can blind us to 
certain truths and later generation scan see that laws once thought 
necessary and proper in fact only serve to oppress.  As the Constitution 
endures, persons in every generation can invoke its principals in their 
own search for greater freedom."

These are powerful words, but their implications are not in what they 
say but what they don't say.  In his dissent, Justice Scalia writes:

"The Texas statue undeniably seeks to further the belief of its citizens 
that certain forms of sexual behavior are 'immoral and unacceptable." 
Browers, supra, at 196 - the same interest furthered by criminal laws 
against fornication, bigamy, adultery, adult incest, bestiality, and 
obscenity.  Browers held that this was a legitimate state interest.  The 
Court today reaches the opposite conclusion.  The Texas statute, it 
says, "furthers no legitimate state interest which can justify its 
intrusion into the personal and private life of and individual,' ante, 
at 18 (emphasis added.) The Court embraces instead JUSTICE STEVENS 
declaration in his Browers dissent, that 'the fact that the governing 
majority in a State has traditionally viewed a particular practice as 
immoral is not sufficient reason for upholding a law prohibiting the 
practice," ante, at 17.  This effectively decrees the end to all morals 
legislation.  If, as the Court asserts, the promotion of the 
majoritarian sexual morality is not even a legitimate state interest, 
none of the above mentioned laws can survive rational-basis review."

Thus the issue of morality in sexual practices becomes now integral to 
the interpretation of both the Due Process Clause and the Equal 
Protection Clause.  In the greater sense of "morality" then so does the 
issue of gay marriage.  Therefor, under precedence, the SCOTUS has left 
open the door for equal protection of bigamy, adult incest, etc.  This 
is the argument to which I protest.  Under the Court's interpretation, 
all laws on sexual morality are now subject to review.  Wayne's argument 
that equal protection applies to homosexual marriage because marriage is 
a legal contract is not true.  The California statue explicitly states 
that it is not.  However, Kennedy et al, now call into question the role 
of the majority in all situations where morality is a question in the 
public debate.

Wayne is right to the extent that it appears that the SCOTUS will 
eventually make gay marriage ordained as legitimate by judicial fiat 
under the 14th Amendment.  I agree with that outcome.  What is happening 
though is states, fearful of judicial activism, are amending their 
constitutions. Thirteen have done this so far and several more, 
including California, have such referenda in the works.  Again, the 
blowback from judicial activism may ultimately cause a change in the 
U.S. Constitution that will make the goal of equal marriage protection 
for gays impossible.  That, if you were paying attention, was my initial 
objection to the California court ruling.  Had the Massachusetts court 
not made its activist decree last year, the natural evolution of law 
accepting the rights of gays would have proceeded without so much 
gnashing of teeth.  Ultimately, such activism is deleterious to the 
evolution of liberty and democracy.

But such judicial activism is not a limited to liberal causes.  Take for 
example Bush v Gore.  An activist court in effect stopped what was an 
issue for Florida to decide per the Constitution.  The court was correct 
that the Florida Supreme Court had overstepped its jurisdiction by 
overturning laws that the citizens of Florida had made law. The SCOTUS, 
however, went too far by asserting its power and ending the "due 
process" to which Florida citizens were entitled.  The entire matter 
would have been solved by Congress had it taken its course.  There are 
other cases decided by SCOTUS that put limits on tort awards.  This is 
decidedly bad from a constitutional perspective and very much 
pro-conservative.  So, as I admonished the courts for activism, I do not 
do it from the standpoint of liberal v conservative.  And to my 
detractors I say that I propose that it is better to have these things 
solved in a democratic forum of law making rather than in the courts.  
That, however, is impracticable on some issues.  Therefor I say it's 
preferable but not always correct, such as in instances of racial 
discrimination. 

I fear, however, that in this case it will cause harm to my objectives 
in the long run and comes under the heading of "unintended consequences."

db


Joan Opyr wrote:

> Dave Budge writes:
>
> "But just as the Supreme Court made unconstitutional the practice of 
> executing minors (the outcome with which I approve as I  approve of 
> the outcome of the decision in question) the upshot is a loss of 
> democracy for residence of the states.  Preferably the law should be 
> changed by democratic process.  In other words, the day will likely 
> come when a law that you favor and is mandated by majority 
> representation will be overturned by judicial fiat.  This is the wrong 
> way to run a democracy or a republic."
>  
> I don't disagree that the California decision may (okay, probably 
> will) come back to bite us in the ass; it's always one step forward 
> and two steps back.  But in terms of our federal Constitution, that 
> great document does give voice to the radical idea that the rights of 
> the minority may not be impinged nor infringed by the whim of the 
> majority.  In other words, my civil rights cannot and should not be 
> put to a majority vote.  I admit that this is an idealist's view of 
> the Constitution, but I would argue that any time you subject 
> the rights of any minority group -- be they gays and lesbians or 
> racial or religious minorities -- to a majority vote, then the 
> minority group will invariably lose.  People are by and large 
> change-averse.  They will cling to a status quo long past reason and 
> even when that status quo has begun to have a negative financial and 
> political impact on the majority.  Witness the current argument over 
> illegal immigrants.  The United States' agricultural economy would 
> collapse without a steady influx of illegal aliens, AKA migrant 
> workers, from south of the border.  And yet in states like California, 
> which clearly benefits from this influx of workers, a majority votes 
> in referendum after referendum to deny these workers access to 
> schools, health care, and driver's licenses.  This makes absolutely no 
> sense in terms of California's economy, but beating up on illegal 
> aliens is a popular pastime.    
>  
> If we had waited for the majority in the South to integrate schools 
> and lunch counters voluntarily, right here in the year 2005, Oprah 
> Winfrey and I would still not be able to attend Calculus 
> class together nor could we share a pimento cheese sandwich at a 
> Southern Woolworth's.  Minority rights can never be subjected to 
> a majority vote -- not if we, the minority, actually want those 
> rights.  Instead, we are forced to rely on favorable judicial 
> interpretations of the 14th Amendment and hope that once change 
> has happened, the majority simply gets used to it.  Is that 
> Machiavellian?  Absolutely.  I'm afraid it's also Realpolitik.
>  
> Now, wasn't it a rather interesting and radical interpretation of 
> the 14th Amendment that put Mr. Bush in the White House back in 2000?  
> I believe that the U. S. Supreme Court ruled 5-4 that Mr. Bush would 
> be irreparably harmed, i.e., he would lose the election, if the 
> Florida re-count were allowed to continue.  In other words, the equal 
> protection clause was interpreted to apply to Mr. Bush the 
> individual rather than to the majority of Florida voters.
>  
> Joan Opyr/Auntie Establishment
> www.auntie-establishment.com <http://www.auntie-establishment.com>
>         
>
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