The San Francisco District Court opinion in the same-sex marriage case, Perry v. Schwarzenegger, has generated a lot of criticisms.  Others have focused on self-serving prejudice, the selection of “expert witnesses,” and the judge’s crediting everything on the favored side and discounting everything from the other side (the voters of California).  But my main criticism runs much deeper, and the Perry opinion is but a descendant in its family tree. 

Reading the first 109 pages of “evidence” and “finding of facts,” any lawyer—or non-lawyer for that matter—should be struck by the subjective aspect of the judge’s judicial review of the legitimacy of Proposition 8.  Readers should be asking themselves: Why is a judge interjecting his views on the issue?  Who made the judge the censor?  Why is this issue even in court? 

By what authority does a judge step into the halls of the legislature, or in this case, the homes and minds of the voters supporting Proposition 8, and evaluate their decision to limit marriage as between one man and one woman?  The short answer: you’ve heard it before, unrestrained activism supported by judicial invention built upon judicial invention.

Contrary to Perry, the voters of California should not have to defend their evaluation of the same-sex marriage issue, i.e., their literature, their version of the “evidence” and “findings of facts,” their version of what “dwarfs” what or what “fatally undermines” what.  The California voters, at war with the judiciary, had the issue presented to them, and they voted—not once, but twice—to limit recognized marriage as the union between a man and woman.  And so have many voters in other states.  

Under our modern-day judiciary, courts intervene and sit as a superlegislature to view the reasonableness of enacted legislation.  The process is conveniently masked in terms and doctrines such as “equal protection” and “due process” from the Fourteenth Amendment.  These concepts entered the legal picture with a different meaning.  “Due process of law” was aimed at preventing arbitrary executive action contrary to established law of the land.  “Equal protection” was not an all-things-equal concept, but an equal-administration provision aimed at protecting newly freed slaves at a time when they were being denied the benefit of enacted laws. 

But crafty judges, operating free of meaningful sanction, have found a way to increase their jurisdiction by drawing greater substance out of these procedural safeguards.  “Due process” and “equal protection” now give the judge not the ability to ensure that the enacted law or procedure is enforced but a subjective jurisdiction to determine whether the enacted law is, in effect, fair, reasonable, good, or beneficial to the common weal in the eyes of the judge, e.g., to void legislation correlating with low “warmness scores.”  Through the use of substantive due process and substantive equal protection, judges have superimposed their value system on the legislature.    

In this particular chapter of judicial activism, the judge in Perry concludes, among other things, the moral foundation supporting Proposition 8 is insufficient to justify its enactment under the Fourteenth Amendment.   The judge, grouping moral and religious beliefs, cites for his secular-only view of legislation, no surprise, the judicial inventions stemming from Everson v. Board of Education.  The full criticisms of that opinion will have to wait for another post, but in short, setting aside the incorporation objection for now, the Supreme Court in Everson and its progeny selected one particular viewpoint of one particular state and recast the entire establishment-free exercise jurisprudence in concepts extracted from that viewpoint.  Why choose the Jefferson-Madison “Wall of Separation” from Virginia as the starting place for “establishment” and “free exercise” of the First Amendment?  There were other states with different views of church-state relations during the founding generation.  Travel back through colonial and English history and map the complaints of “established” religion along a spectrum: the use of the motto “In God We Trust” on one end and the execution of disfavored believers on the other.  I think you’ll find the latter more accurately describes the character of the establishments the framers sought to avoid.  Following Everson and subsequent opinions, the federal courts are like religion exterminators, baiting, drawing out, and annihilating the mere presence of faith in the public sphere.  A cross on a flag, a cross on a hill, a religious motto, the examples fill the volumes of the Federal Reporter. 

Contrary to the judge’s view, it is perfectly acceptable for the voters of California to vote for Proposition 8 on moral grounds, just as it is for the voters to ban murder.  California has had marriage laws on the books both before and after the enactment of the Fourteenth Amendment.  Under Perry and the emerging values of the social elite, marriage laws limiting marriages to those between a man and a woman violate a fundamental right and create an impermissible classification.   The court, applying the rational basis-strict scrutiny framework, held that the voters’ classification was irrational, did not have any legitimate purpose, and failed all judicial scrutiny standards.   If you detect cynicism in the presentation thus far, it is intentional.  “Rational basis,” “strict scrutiny,” “intermediate scrutiny,” “exceedingly persuasive scrutiny,” . . . “fill-in-the-blank scrutiny,” they are all mere examples of gilded pills.  Throughout history, you’ll find descriptions of the authority of legislatures to legislate for the common welfare, including legislation with moral considerations.  In the late nineteenth century, following the hijacking of the Fourteenth Amendment, judges converted a simple description of the police powers of the legislative branch into a judge-made checklist, clenching jurisdiction for the judge to exercise reasonableness review of the legislation at issue.  This jurisdiction eventually mutated into the permutations of scrutiny.  Once you swallow the invented scrutiny framework, you’ve already started the devolution from representative government to judicial hegemony. 

Under current scrutiny standards, judges have positioned themselves to presume “suspect” legislation is unconstitutional unless proven otherwise.  In this light, the judge is like a master playing fetch with his dog.  The first step for the judge, applying his or her personal, socioeconomic, and ideological preferences, is to decide how far to throw the stick.  If the judge is bored with the issue, or the minority view doesn’t have the backing from the social elite, the judge will probably give a small throw.  We’ll call this a “rational basis” throw.  If the issue is controversial, ripe for a judicial hero, the stick gets a far throw, past several invented “constitutional” criteria including “history of discrimination,” “little political power,” “contribution to society,” and “any other social or economic criteria.” We’ll call this a “strict scrutiny” throw.  The next step is for the master to yell “fetch!” 

Fetching adequately is not an easy task for the defender of legislation.  Often, the state must compellingly traverse these same “constitutional,” eye-of-the-beholder criteria.  (Throw the stick a little farther, “moral foundations” are insufficient.)  If the state hasn’t fetched or defended its legislation adequately to the satisfaction of the judge, the legislation is unconstitutional “beyond a reasonable doubt.”  Presto, a landmark opinion! 

Constitutional or unconstitutional . . .  seems like a three-page opinion with caption, not a 138-page opinion.  Granted, a three-page opinion doesn’t serve the judicial enforcement of the Bill of Rights well as those provisions, originally aimed at limiting the potential tyranny of the federal government, were rather opened-ended.  Despite the breadth of the Bill of Rights, early courts didn’t fill volumes with judicial opinions invoking the Bill of Rights to find federal laws unconstitutional.  This is explained by a healthy judiciary and by the fact that a federal government limited to enumerated ends would not run afoul of the Bill of Rights.  Following the Fourteenth Amendment and the judicial incorporation invention, a self-executing Bill of Rights more or less applies to the states via the judiciary.  And now we have activism run amok.  The inversion of the Bill of Rights, from a high fence to curb feared federal centralization to a fortress for judicial power possessing a far greater centralization, has created and entrenched the very tyranny—in the hands of an oligarchy—the framers sought to avoid.  

Contrary to the modern judiciary and the Perry opinion, constitutions were not designed to make the legislature the dog and the judge the master.  The framers, perhaps naively, contemplated judicial review, but that was judicial review of a different variety.  Overtime, the judiciary, like unkept English Ivy outgrowing its pot, has consumed democratic government.  If the social elite want same-sex marriage, take it to the polls—again.