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  • Extreme Judicial Activism on Marriage

    Today’s decision by a federal district judge in San Francisco striking down state constitutional protections for marriage and inventing a spurious federal constitutional right to same-sex marriage is an example of extreme judicial activism.  Moreover, it is an affront to the millions of California voters who approved Proposition 8 in 2008 after months of vigorous public debate.

    Governments derive their just powers from the consent of the governed.  The people of California, and the United States, have made clear in numerous ways that they have not consented to the redefinition of marriage.  For the past two decades they have considered the arguments advanced by some for overturning marriage as it has been understood in our country.  In state after state — 45 in all – they have chosen to reaffirm the meaning of marriage as the union of one man and one woman.  They have done so because they understand that establishing same-sex marriage would transform the institution into a set of private interests rather than buttress it as a multi-generational reality binding mothers, fathers and their children biologically, socially and legally.

    From the beginning of this litigation we have pointed out Judge Vaughn Walker’s trail of activist rulings, from his inappropriate decision to convert a legal proceeding into a show trial, to his failure to follow legal procedure in ordering live video streaming of the trial.  Fortunately, Judge Walker’s abrogation of the rule of law on the latter issue was swiftly rebuffed by the Supreme Court last January when it vacated his decision to broadcast the trial.

    Judge Walker’s ruling today similarly abrogates the rule of law.  Marriage has enjoyed unique status because unions of husband and wife are, in fact, unique, and because they uniquely serve the common good in ways that same-sex combinations simply cannot.  We are confident the Supreme Court will reject Judge Walker’s view that the people of California cannot protect the meaning of marriage in their state constitution.

    We join our voices with the clear decisions rendered by large margins in the vast majority of the states, and in every state where a popular vote has been held over the past two decades.  It is time for the American people to stand up in support of their right to protect marriage.  Judicial tyranny on the question of marriage must not be allowed to succeed.

    Posted in Culture [slideshow_deploy]

    90 Responses to Extreme Judicial Activism on Marriage

    1. Proud Gay American says:

      Sorry Chuck. You may continue to think that I am inferior to you and your wife, but you're gunna have to tolerate my gay marriage.

      "Moral disapproval alone is an improper basis on which to

      deny rights to gay men and lesbians. The evidence shows

      conclusively that Proposition 8 enacts, without reason, a private

      moral view that same-sex couples are inferior to opposite-sex



    2. Karla, Toronto says:

      Straight marriages are not better than gay marriages. Your belief in this fact is unfounded and misguided. I truly hope you have read Judge Walkers entire decision, as he clearly explains how the proposition violates the constitution.

      "California’s obligation is to treat its citizens equally, not to mandate its own moral code." –decision by Judge Walker

    3. Mark Kraft says:

      Damn those Ronald Reagan judicial appointees and their gay agenda!

      No wonder patriots like Nancy Pelosi voted to reject his appointment!


    4. Ted Powell, NW Washi says:

      This only makes sense if you are proposing to require mutual-fertility testing for couples wishing to marry.

    5. Ivan Douglas says:

      Don't forget to mention that Judge Walker was appointed as judge by Ronald Reagan. I just don't get it.

    6. James Farmer says:

      And how, exactly, is it "extreme" activism to affirm that the gays are part of the "any person" that are guaranteed due process and equal protection?

      What a lame lament to decry "activism" when you simply disagree with the decision.

      Instead of bellowing about "extreme activism", how about posting a refutation of the Judge's arguments? How about an explaination of where the judge got it wrong in your opinion? As far as I can see, your argument is simply that a lot of people have voted against same-sex marriage — hardly a legal argument that the 14th amendment doesn't cover this case. Democracy is not simply a majority voting to deny a minority their rights.

      The day will come when my grandchildren will look at opponents of same-sex marriage the same way I look at opponents of mixed race marriage 50 yrs ago.

      You're on the wrong side of it morally, legally, and historically.

    7. Jackson Pearson, CA says:

      The vote of millions of voters again being trumped by the vote of one person, wearing a long, and ugly black dress. Something is terribly wrong!

    8. Guy, VA says:

      Good decision. Blows holes in all the conservative arguments against gay marriage. This was a decision by a conservative judge appointed by Reagan, no less.

    9. Jake, Washington, D. says:

      Its "own moral code?" That is quite a presumption by the good judge. Is it not ironic that the very "moral code" that gave us the idea of equality in the first place (as laid out in the Declaration of Independence) is the same moral code that the judge throws out in order to justify same sex "marriage?"

      The line by the judge is self-defeating. If California is mandating its own moral code by saying marriage is by definition heterosexual, then the judge is mandating his own moral code by saying it isn't. The line provided above by the judge is clears up a lot of things about the judge's critical thinking ability, but it does nothing to clear up how proposition 8 violates the constitution.

    10. Peter, Los Angeles says:

      It's worth pointing out that Walker did not order "live streaming video," but rather daily postings of trial proceedings to YouTube. I find it interesting that the defendant-intervenors claimed that video coverage of the proceedings could lead to harassment and intimidation of their witnesses, when their full names and testimony would appear anyway in trial transcripts, which are a matter of public record. This sounds more like an attempt to keep the public in the dark.

    11. Michikoko says:

      Man, it's great that we can vote on whether or not the state recognizes another person's rights. We should keep Asians from marrying and keep blacks from voting.

    12. Bob Witeck, Washingt says:

      I refer Chuck Donovan to this part of the Court's decision:

      "That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'"


    13. George, San Francisc says:

      Your commentaries are misleading. A Federal judge, being part of the third branch of government, has the power to determine the constitutionality of a legislative action, whether enacted by the legislature or popular vote. That is fhe system of checks and balances that the Founding Fathers you seem so ready to bring forth intended. There are two more levels of appeals available. So, unless you want a government that is autocratic in nature, be proud that the tyranny of the majority, whether you agree with its opinion or not, can be challenged with due process

    14. Pingback: Defense of Marriage Continues Despite Judicial Activism

    15. Pingback: Reagan-Appointed Judge Strikes Down Gay Marriage Ban | Think Tank West

    16. Gorgias says:

      The people of America also agreed to be bound by the constitution, and to make certain facets of the polity immutable in the face of temporary democratic challenge, to be overturned only when the difficulties of amending out constitution could be overcome. The first of those rights were the rights to bear arms, to speak freely, and to be safe against search and seizure. In the aftermath of the Civil War, our forefathers agreed also that the right to equal protection under the law ought to be enshrined in our constitution, protected from the momentary passions of day-to-day democratic governance. Our forefathers have never proved as wise as they have today.

    17. Brad Potts says:

      "Governments derive their just powers from the consent of the governed."

      There are two hallmarks of good governance: 1) What you have stated, that government is government by consent. 2) That government is constrained constitutionally on what those just powers are.

      All of the voters in the world are not going to justify government intrusion that is not already justified by the moral role of government as protector of life, liberty, and property.

      "They have done so because they understand that establishing same-sex marriage would transform the institution into a set of private interests rather than buttress it as a multi-generational reality binding mothers, fathers and their children biologically, socially and legally."

      When you get rid of your bigotry, you can actually catch up with reality and realize that marriage is a set of private interests, and that there is nothing about the law or reality that defines marraige as "a multi-generational reality binding mothers, fathers and their children biologically, socially and legally." My wife and I have no intentions of starting a traditional family. We simply love each other and are happy to have the legal benefits and rights afforded to two people who agree to live their lives jointly and cooperatively. Perhaps you should take your argument to its real conclusion and force married people to have children?

      Ultimately, marriage is a private, contractual agreement entered into privately by two individuals. It exists between two people, and those people and God if that is your thing.

      The fact that you believe that government should rule on who can enter into these private contracts, specifically barring a large portion of the population from an extremely important and mutually beneficial contract, betrays you for what you are Chuck Donovan: not a conservative, not even a decent human being, rather you are an authoritarian in search of tyranny.

    18. Joe, Orlando Florida says:

      you can treat people equally without changing the definitions- we already do that in many states wrt same sex unions.

    19. Ron in Poland says:

      Your last sentence. "Judicial tyranny on the question of marriage must not be allowed to succeed." In a larger sense omit the the phrase on the question of marriage. It should read "Judicial tyranny must not be allowed to succeed." This judicial tyranny can't be tolerated. He should be removed from the bench. Impeach him. We have to get our republic back. The people have to hold power or there is tyranny. Activist judges who single-handedly overrule the will of the people have to be removed. There is no way that a gay marriage is a Constitutional right. We have so lost our way in this country when our judges and representatives don't even know the definition of marriage.

    20. Macarena Cotelo, Spa says:

      Three years ago, the Spanish Government approved a law to make legal homosexual "marriage", even though 1,5 million signatures from citizens were submitted to our Parliament against that initiative. A massive demonstation pro-family took place with no impact on our Government decission. That kind of decissions show how radical and far from real life a Government can be. Why don't they take care of the real problems of the real majority of the people: jobs, education, health…? Good luck!

    21. Macarena, Madrid (Sp says:

      I think is totally nonsense to consider homosexual unions as marriages. Give it other name, and regulate all kind of rights and duties you consider necessary for legal reasons, but that kind of unions cannot be considered as a family (mother+father+children), not at all. What kind of societies are we building in Western countries?

    22. Hlda Morris, Richmon says:

      The Bill of Rights is designed to protect the rights of minorities even against the opinion of majorities….in fact, one could aolmost say that the definition of a "right" is something that the majority would like to take away but that is protected by law. Heritage treats other so-called rights that way, defending their view against popular majorities, but not here.

      Moreover, we need to get government OUT of the business of telling people whom they can love and live with, whether they do it by referendum or law. You argue for smaller government, but NOT when it interferes with personal life choices.

      Further, there's no evidence that gay marriage hurts heterosexual marriages. And there's no evidence that heterosexual marriages are the paragons Heritage says they are: adultery is rampant, and Heritage never promotes severe penalties for THAT biblical offense! Divorce is widespread, even with bans on gay marriage.

      Why will you not face the reality of facts and your own moral failure…..you're inconsistent, about the Bible, about social policy, and about the intrusiveness of government.

      The Emperor has no clothes.

    23. Barbara Frances Delo says:

      What frightens me so much about this is the arrogant disregard for both the proper role of the judiciary AND the will of the American people. Judges,whether liberal or conservative, must not use their power to impose their social vision.. Our forefathers have given us a Constitutional way to implement change. If we disregard that, our nation is not very different from a autocracy run by a ruling elite rather than a democratic republic and a nation of laws. . .

    24. Brad Potts says:


      Judge Walker said: "The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples."

      That is so distinct from the moral code laid out in the Declaration of Independence that I am reasonably sure that you have absolutely no idea what ideas that document conveys.


      Who gives you the authority to define what a "family" is? Are you saying that my wife and I, who have no intentions of having children, cannot be a family?

      If you don't believe that government has the authority to define what marriage can be, why do you believe that it has the right to issue marriages in any form?

      It also should be noted that government is not imposing anything here, rather it is lessening its intrusion. There is nothing about this that restricts the government from addressing the "real problems of the real majority of the people". Indeed, in this case, the people that side with you are the ones who wish government to institute rules on who can and can't get married, rather than dealing with "real problems".

      Lastly, it is a principle of good government that it represents the real problems of all people, not just the majority. Your dismissal of bans on against gay marriage as not being a "real problem" is precisely the attitude Walker was rebuking with this ruling.

    25. Nick Ottens, Netherl says:

      I beg to differ, sir. The rule of law should be grounded in an objective morality, not the "consent of the governed". That's mistaking law for government. Law by majority is mob rule. The rule of law should apply to all, equally.

    26. Tobias Fuentes says:

      Quote: "Marriage has enjoyed unique status because unions of husband and wife are, in fact, unique, and because they uniquely serve the common good in ways that same-sex combinations simply cannot."

      You can come up with whatsoever explanation and excuse, but it will always be as absurd, insolent and repressive like that.

    27. Pragmatic in Texas says:

      I find it interesting that anyone believes that you can legislate a cultural morality issue, that has nothing to do with the laws or the Constitution. Where in the Constitution does it state you have to marry? It doesn't. That is purely a personal choice that is derived from our right to life, liberty, and the pursuit of happiness. Dictating how a person should feel morally, and what they are forced to accept never ends well.

      Now we've given yet another interpretation of the "ever evolving" U.S. Constitution. All those who think marriage is a right, think about this: What is next? Which judge is going to interpret that Sharia Law as Constitutional? What if this becomes part of our jurisprudence? It already has in England. Do you think you could stomach watching a woman being stoned for adultery? A homosexual beheaded? A teenagers' hand cut off for stealing?

      If you scoff at this notion, just think: Who would have agreed to have a Mosque built on the site of the worst terrorist attack in our history on 9/12/2001? It may very well become a reality. Something also forced upon the majority by the minority.

    28. Jeremy, Bend Oregon says:

      Marriages are not meant to serve the common good. They are meant to serve the two parties involved. Or I would assume Mr. Donovan would ask for a constitutional amendment banning the marriage requests of all ex-felons who seek to be betrothed. Perhaps we should also dissolve marriages that include tax cheats, wiccans, or immigrants, EVEN IF BOTH PARTIES WANT TO REMAIN MARRIED. Marriage isn't a government institution, it's a private institution that is merely recognized by government.

      I will say that I disagree with the way this federal court ruled on the issue: This should've been an unconstitutional amendment as per its violation of the U.S. Constitution's First Amendment ban on "respecting an establishment of religion". For without religion, there is no reason to deny a voluntary union of two gay people.

    29. Debbie Wolfe (Keller says:

      Did you write this before you read the decision? Perhaps you can illustrate your claim of judicial activism with examples from the judge's decision? If not, you are merely continuing down the meritless path trod by the Prop 8 proponents. Can you defend Prop 8 with anything other than the same old baseless platitudes they employed?

    30. Pingback: Prop 8 Judge Appointed by Reagan

    31. Lloyd Scallan (New O says:

      Anyone interested in the rule of law should recognize this judge is himself gay.

      His ruling is a direct conflect of interest, and should not be allowed to stand. In particular since his ruling totally ignores the votes of the majorty of citizens. And yes, despite the comments, the people of a state do have a right to vote on their moral values. I am not anti-gay. I don't give a wit as to who a person has sex with or marries. The point is the rule of law is again being shreadded because of political correctness and that the "minority" now rules.

    32. Norm Klevens says:

      Yea for the judge who determines to thwart the will of the people in two elections. Have any of you geniuses heard of Gay Unions that give gay couples here in CA all of the rights of a legally married man and women ? A judge is not suppose to make law; they are supposed to interpret the constitution; not re-write it. 39 states have laws prohibiting gay marriage and the federal congress passed a law banning it. This is tyranny. The will of the people is being tossed aside everywhere you look.

    33. Bernie LaSalle, Salt says:

      This article would have had some credibility if the author had read, and referred to, the actual text of the ruling and its findings. Regardless of one's personal views, the proponents did not make their case in court. Moreover, the ruling was very detailed in citing the legal basis for the decision. If the author wanted to take exception to that I could better understand his position. This was not a case of an activist judge creating a ruling against the people. It is a case of a judge applying precedent and settled law to a case, while correctly stating that the government has no compelling reason to deny marriage on the basis of sex or sexual orientation.

    34. RoseAnn, Glenside PA says:

      I have read all the comments and have realized just how many people thing that marriage is a right giving in the Constitution. It is not a right, it is a privilege for a man and woman to become one and then to procreate.

      I don't think having children is a right either. It is a privilege and whether a husband and wife choose to have children or not is part of that privilege. Then there are husbands and wives that find out that they cannot have children. I cannot even imagine what that would feel like.

      Our Constitution is to have the government to govern according to the will of the people. If the will is to ban gay marriage then it should be upheld. If it is to ban total cell phone use while driving that too should be upheld. Maybe it is time for all Americans to be taught what our Constitution actually says and means by unbiased professors. But that seems to be an oxymoron in these times.

      It is time to get rid of judges that want to make law (no matter who put them in their seat) and nominate judges that will follow the Constitution. The judges should allow the legislation to make the law according to the will of the people. It is something that our government officials have forgotten and many Americans as well.

    35. David Feldman says:

      This whole issue is a waste of time. Within the next generation, scientists mapping the genome will discover the defect that causes homosexuality. Soon after, parents the world over will have the opportunity to cure their pre-born offspring. A generation or two after, the gay agenda of a secular world-state will begin to dissolve. Afterwards, only those still watching MTV or Dancing with the Stars will aspire to homosexuality.

    36. Gigi, Michigan says:

      Hard as I try, I simply cannot connect the teachings og Jesus with the hate and lies spewed by so called "Christians"

    37. Laura says:

      If my vote meant nothing in November of 2008, then why should Californians continue to vote at all? Our democracy means nothing then. There are more pervasive and sinister aspects of this whole issue. The ludicrous notion that gay marriage is the same as "straight" marriage and should be extended "equal protection" and "due process" is simply a blatantly unintelligent argument. What ever happened to Anatomy and Physiology 101? How about the obvious cross-cultural differences between men and women and how those differences affect procreation and healthy gender identity? Same sex couples have very different dynamics in their relationships that do not contribute to the well-being of little girls and boys in those "families," regardless of what Judge Vaughn cites. I can't imagine a little girl growing up without a mother or a little boy not having a father – ever, because he has two mommies. The agenda of many, not all, in the homosexual community is to eventually destroy all that we value about the unique differences between men and women and how they are expressed in heterosexual marriage. Judge Vaughn is part of that system as he arrogantly asserts that his "enlightened and progressive view" is superior to thousands of years of heterosexual human interaction that have guaranteed that human beings continue to procreate and ensure the survival of the species.

    38. Maddy, Lafayette says:

      One person (this judge) has the power to ignore the will of millions of people…sounds like a monarchy government to me. Isn't that why we became our own country in the first place? If the majority cannot affect their own government, then the real question is, Who has the power to shape our future?

    39. Jin Slagg, Portland, says:

      Oh I see how this works….It is only Judicial Activisim if it does not rule in the favor of Conservates. Please show me where in the bible that it clearly states that marriage is between a man and a woman. And I am not talking about a cryptic Psalm or scripture that says in black and white that marriage is only between a man and a woman. Guess what folks, it does not state it anywhere in the bible. What I really do not understand is how are Gay and Lesbian couples hurting marriage? Beyond the typical (an often incorrect) Marriage is between a man and a woman argument, there is not much to stand on. Anyone that I have talked to personally can never give a clear answer as to how it harms America. And reading comments about the so-called Activist Judge(s), all I can say to those of you, you all really need to read your Constitution. And whether you like it or not, the law did and does violate out Constitution. To Lloyd Scallan, so what does his sexual orientation have to do with the ruling? Nothing that's what. And one more thing, for all of you that are claiming that you are losing America..now you know to a certain extent how the Native Americans felt…

    40. Steve S. California says:

      The portrayal of the state formulating it's own moral code is a false one. This is a case of folks trying to redefine the meaning of marriage due to sexual orientation which is not an area discussed or addressed as an "inaleinable right", which proponents of gay marriage have tried to redefine.. This is not about value judgements about whether same sex marriage is better or worse than what you call "straight" marriage (interestng term in and of itself). To try and invoke "equal protection under the law" is a spurious argument. If one commits a crime against a homosexual due to the fact that the individual IS a homosexual, the law provides that that is a hate crime, and provides for very harsh (and I believe rightfully so) punishment thereof, and provides the same protections as any other group subject to the same type of treatment, irregardless if that group perpetrates the same crime against others! Tolerance and respect should be the norm, but efforts to make the union itself legal is an entirely different (legal) argument, one unfortunately muddied by the all or none approach taken by most, including said federal Judge. And if you don't believe that judicial activism is real OR dangerous, you are simply not paying attention.I refer you to the Black panther issue. Also, remember that the generation of the prop 8 issue was in response to the attemt to CHANGE what existed. This is not a pro or con issue for me any more than it is really a conservative/liberal issue as claimed by som on this blog, as if there are not conservative gays or liberal straight people. Understanding that it IS an emotoinal issue for many, we should make every effort to not cloud issues and label folks. Isn't that offensive to the gay community as well as many others? If we can't stop doing that, how do we tackle the issues in a sensible manner? By the way,my personal belief is that to date, we have not done so.

    41. Timothy Hagen, Los A says:

      Your first sentence implies that you believe in a federal Constitutional right to heterosexual marriage. Please show me where in the Constitution this right exists, or else admit that this right is no less "spurious" than the newly-acknowledged (not newly-extant) right of thousands of loving same-sex couples to be treated equally under the law.

      As Judge Walker wrote, "Moral disapproval alone is an improper basis on which to deny rights." I deeply morally disapprove of the hypocrisy with which you married heterosexuals often conduct your lives, having messy divorces that frequently damage the very children you seek to protect. However, I do not wish to keep you from your "spurious" right to marriage; therefore, please do not keep us from ours.

    42. Andrew, Indiana says:

      This is fundamentally an issue of bigotry and religion thinly veiled as a secular argument. The moral right has always sought to oppress those who oppose their will through any means necessary. From the crusades to the inquisition to McCarthyism to this. Luckily, the founding fathers recognized the damage religious interpretation does to due process and judge Walker reaffirmed this through his ruling. "To follow by faith alone is to follow blindly"~ Benjamin Franklin.

    43. David murphy, CA says:

      It's funny to see how often when the "conservative" right wing does not get their way and when a republican appointed judge does not rule in their favor- suddenly he's an "activist" and they scream it as loud as possible hoping someone will believe the lie. They have no idea of what equal protection, separation of church and state, or discrimination mean. Prop 8 was an illegally funded, discriminatory, unconstitutional mess pushed on CA taxpayers by religious institutions (The Church of Mormon) it stripped a minority segment of US TAXPAYING citizens of their civil right to equality based on religious and social bias. Discrimination is not legal no matter HOW many people vote on it.

      Norm- do some research- the current "Gay Unions" in CA do not confer the same rights as current legal marriages. You can spout that myth as much as you like, it's not going to change the facts.

    44. Jon Wollenhaupt San says:

      From the San Jose Mercury News: ""Years from now, when all Americans finally are permitted to marry the person they choose, we'll look back on today's ruling by Federal District Court Judge Vaughn Walker as a historic milestone – a moment when the opponents of equality were exposed for the hypocrisy and absurdity of their arguments. Defenders of the 2008 initiative presented just two witnesses, neither of whom could offer any credible evidence that gay marriage harms heterosexual marriage or that barring gays from marrying promotes any legitimate state interest.

      "It wasn't poor courtroom maneuvering that led to this outcome. Says David Boies, a lead lawyer for the plaintiffs: 'They didn't fail because they're bad lawyers, they failed because there isn't any evidence to support the argument they're Advertisement advocating.' "

    45. Mr. M. , Riverside, says:

      Since when does the court have rule over the highest of courts. This ruling was cast long ago! And so it was said,

      "Then the LORD God said, "It is not good that the man should be alone; I will make him a helper fit for him."

      So the LORD God caused a deep sleep to fall upon the man, and while he slept took one of his ribs and closed up its place with flesh. And the rib that the LORD God had taken from the mand he made into a woman and brought her to the man. Then the man said,

      "This at last is bone of my bones

      and flesh of my flesh;

      she shall be calle Woman,

      because she was taken out of Man."

      Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.

      —Genesis 2:18, 21-24

    46. JR, Upstate NY says:

      "Marriage has enjoyed unique status because unions of husband and wife are, in fact, unique, and because they uniquely serve the common good in ways that same-sex combinations simply cannot."

      In what specific ways do heterosexual marriages "uniquely serve the common good"? This vague argument is precisely the kind of argument that Judge Walker rightly declared to be inappropriate to the reasoned deliberation of our courtrooms.

    47. Ted, Denver says:

      Awful article. The point that is being missed is that "marriage" confers rights / privileges upon those who marry whether it be tax breaks, insurance issues, privacy matters, etc. Why should homosexuals be denied such privileges simply because they are born homosexual? By being born homosexual (and please don't anyone be so stupid as to argue that homosexuality is choice) we are saying that homosexuals are not entitled to the same privileges / rights that heterosexuals are. Effectively, at birth we are saying that homosexuals are not created equal as they are not entitled to marry who they love and therefore are denied the rights / privileges that marriage confers. What other class (gender, race, national origin) is treated this same way? What is the threat of heterosexual marriage? Opposition is simply based on bigoted notions of homosexuality. There is no emperical evidence that homosexuals are less devoted husbands and wives or any more promiscuos husbands and wives than heterosexuals. Therefore what threat does homosexaul marriage impose? How can politicians who have lied and cheated on their husbands and wives, really have any credibility when talking about the sanctity of marriage. Throwing out the word "judicial activism" is simply a way of saying I can't come up with a reasoned opposition and haven't read or simply don't understand the opinion.

    48. Pender, NY says:

      Down with activist judges! Repeal Brown v. Board of Education! Overturn Korematsu! By God, if 50.1% of the country supports apartheid for the other 49.9%, it would be TYRANNY for a judge to stop them!


    49. Sherry McNeese, Slid says:

      Dear Chuck,

      I am a totally hetero 57 year old woman and I am FOR gay marriage. I'm quite sure God approves love in many forms, not just your rather narrow and prejudiced view of love. No one is asking YOU to marry a guy, so what's the big deal? And if you're so worried about the sanctity of marriage I encourage you to focus your efforts on reducing the divorce rate.


    50. John Crawley Dallas, says:

      Actually, this is was a fairly conservative finding. It examined the facts of the case as presented in law. and the judge ruled that a minority had, in fact been infringed upon by the majority over a problem, which does not concern the majority. A gay couple getting married does not materially affect a heterosexual couple from doing likewise. But by not allowing in, by the state barring that action it went against the equal protection aspects of the US Constitution. I just hope the US Supreme court is "smart" enough to leave this ruling alone. The judge made the right call. I am straight and married. And I applaud this as a victory for all American's in keeping a government from infringing upon our lives when not warranted. Suppose the law had been passed that all guns in California be confiscated and the majority approved that law. Do you think the Right, along with the NRA, would sit back and except that? No way. The majority can not evoke its will on the rest of the population when it limits the equal access and fair balance of the constitution. If you could pass a law that keeps gays from getting married, you have grounds to pass a law that says right-handed people can't own guns. Very straight forward case of a judge seeing the law as being superior to the voting booth.

    51. John, San Diego, CA says:

      What disturbs me most is those of you, including the author, think that we should live in a perfect democracy where majority rules on any issue. I'm sorry, but civil rights are not subject to majority rule, and they shouldn't be. Yes, one judge, one appelate group of judges, one supreme court, need to be able to subvert the will of the majority in order to protect civil rights. Don't you guys understand this simple tenet of our constitution? Let me use a topic you may be more sympathethic about – guns. If 55% of the people in a particular state voted to ban gun ownership for everyone, would you sit here and complain about judicial activism if a judge overturned that vote – that 'will of the people' – because the 'democratic process' would be unconstitutional and violate the 2nd amendment? Chuck, your argument has no legal merit.

    52. Gregory, Marin Count says:

      What about the 6.4 M people who voted against prop 8? The whole point of a court system is to protect the minority from the majority.

      Equality won in California yesterday and in the end equality will win across the entire country.

    53. Pingback: Gavel Grab » Prop 8 Ruling: ‘Judicial Tyranny’ or Justice?

    54. Ted, Denver says:

      Norm, Civil Unions do not give homosexuals all the same rights as those of heterosexuals who are legally married. A Civil Union is a state concept and is not recognized under federal law. Civil Unions only apply in states which have authorized Civil Unions and are not recognized in states which have not authorized Civil Unions. Marriage on the other hand is recognized in every state and confers federal rights,for example tax breaks. A Civil Union does not afford such federal rights.

    55. Hank, St. Louis says:

      I wonder how many people supporting Prop 8 would feel if a state in the Union were to have a majority of the people adopt extremist Muslim beliefs and vote for an amendment that required all Brides to be virgins on their wedding day else they be unable to marry unless they happen to be a widow.

    56. Misha says:

      Marriage is not a private contract between two persons. It is a contract involving three parties, the two individuals on one hand and the state on the other hand.

      Any two people can already enter into any "contractual relationship" they want and they don't require marriage to do so. If marriage is merely a contract between two persons, then there would be no need for a marriage license. What the marriage confers is the acceptance of the union by the larger community, via the state and its laws.

      For example, in most states it is illegal to marry your brother or sister, or a parent, etc. Do such judgments represent "moral judgments." Yes, but such judgments are the essence of marriage law and the essence of all law, really.

      It cannot be proven "scientifically" that thou shall not steal, or thou shall not murder. Thus the laws against theft and murder are not "objective" or based on some scientific fact. Rather such laws reflect the moral value judgments of the majority of society, and their elected legislators.

      If two people claim to be really in love, and they are bother and sister, or even brother and brother, then what basis does society have for refusing them a marriage license, other than the arbitrary moral judgment that such marriages ought not to be recognized by the state? If such a couple wants to live together in a relationship, even a sexual relationship, or if they want to conclude private contracts between each other, then the state ought not to interfere (as long as they are both adults). However, there is no basis for such a couple to claim some "right" to marriage, which at its root really means to demand official social sanction for the union, when in fact such sanction does not exist among the minds of the vast majority of citizens. Hence "mandating" such marriages would change the very essence of what marriage is, the voluntary assent of the majority to a union between two people, though the laws enacted by that majority. Rather than increasing the dignity of homosexual unions, such a mandate would decrease the dignity and worth of all marriages.

      I am not for or against gay marriage. What I am strongly in favor of is the notion that society (the majority) have the right to define marriage. Laws that prohibit gay marriage do not deny gays the right to marry, by the definition that society assigns to marriage (as a union between a man and a woman, not too closely related to each other, etc.) Any gay man would have the right to marry any woman (providing she also agrees). It may be true that a gay man, by definition, would not be interested in marrying a woman. But that only means that he is not interested in entering into such a union as society defines it.

      The proponents of gay marriage are not promoting the idea of "equality" in the sense of obtaining some right for gays which is denied them. Rather they are promoting the redefinition of marriage itself. Certainly they have the right to make such arguments, in a legislative context, and society (the majority) has the right to tell them thanks but no thanks. However by pushing the issue in the federal courts (in this case a court in San Francisco, presided over by an openly gay judge) the proponents of gay marriage are attempting to do an end-run around the democratic process, and to have their views imposed on the people by the tyrannical fiat of the federal judicial branch.

    57. Pat, Seattle says:

      A majority of people wanted Gore to be our president in 2000, too. You don't seem to understand that our democracy isn't mob rule. There are underlying principles and rules that govern the democratic process, i.e. the constitution (ever read it?). The constitution requires much more than a simple majority to overhaul. 52% of Californians can't simply vote to reintroduce slavery or allow for cruel or unusual punishment in their state, nor can they vote to deny a class of people equal protection under the law. And, if you actually would read the ruling, since your side has *yet* to provide a single, solid, secular reason for the state to restrict marriage in the first place, it's constitutionally invalid.

      Just because a judge rules the way you don't want them to doesn't make them an activist.

    58. Jim, South Carolina says:

      Any judge that rules the way I want the judge to rule is an extreme judicial activist. Any judge that rules the way I want the judge to rule is merely applying the law to the fact.

    59. Ed Pantaloni says:

      After two referendums which limited marriage to a man/woman were approved by the people of CA and each time a judicial them, what can the people of CA if final power rests with the people?


    60. Pingback: ADF Alliance Alert » Prop. 8 Ruling: “Fantastic” decision or “judicial activism”?

    61. Craig, NC says:

      For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh. (Genesis 2:24)

      Marriage was first provided by God, and It has basically worked well for over 5000 years. While we are all dysfunctional, I don't think we need to add any further to it. I know where I will place my trust. Truth, and time, go hand in hand.

    62. David, Houston, TX says:

      "They have done so because they understand that establishing same-sex marriage would transform the institution into a set of private interests rather than buttress it as a multi-generational reality binding mothers, fathers and their children biologically, socially and legally."

      Please answer these VERY simple questions: Why are senior citizens allowed to marry? Why are couples that are incapable of procreating allowed to marry? Why are couples that have no intention of having children allowed to marry? Why are single-parent families allowed to exist — a child needs a mother AND a father, right?

    63. Neil, Washington says:

      So after reading some of the comments here, I would like to specifically how it is tyranny for the government NOT to intrude on the lives of private citizens. Also, I see some comments about a separate type of union for gays instead of marriage…. so what you're saying is you think the whole "separate but equal thing" was a good idea, right?

      My feeling has always been if you don't like gay marriages then don't get one. Why spend time, money, and energy just to rain on somebody's parade.

    64. David, Georgia says:

      If the "state" has no legitmate interest in restricting marriage to one man and one woman, then does the state have a legitimate interest in restricting it to only two people? This decision will eventually eliminate all restrictions on marriage enacted by the states, including age of consent, number of persons, incest, etc. Certainly all of those restrictions arise out of value judgments (oh my God, there come those d*** morals again!) which some liberal judge somewhere will conclude are religiously based. They will then be struck down, and we will one day have 6 men, 4 women, a 1957 Chevrolet, a duck, two earthworms and a cat all married to each other. Laugh now, but it's coming, because all restrictions will one day fall away.

    65. Rodney, California says:

      We can agree that marriage is a right but what we are trying to determine is, what is marriage. Throughout history the definition has been between men and women. There have been times when multiple wives were acceptable but in modern times it has always been agreed that marriage is between one man and one woman. Now we are being asked to change that definition. Who has the right to define anything in society? We have defined marriage so that it could not be between a brother and sister, father and daughter, or any close relative. Why these exclutions? The judge said to exclude gays would not grant them equallity under the law but what about those others we exclude?

      We define what the different degrees of murder are. Why can't we define what marriage is? This is not a civil rights issue. There are cases where practicing homosexuals have changed their ways. Show me a case were someone has been able to change his race.

    66. Jorjann Chezem, Love says:

      "Justice Scalia stated that the Court should take no part in what is termed the "culture war". After quoting a passage from Murphy v. Ramsey, 114 U.S. 15 (1885) which had praised governmental favouring of heterosexual monogamy, Justice Scalia wrote the following:

      "I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes."

      The dissent ends as follows:

      "Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.""http://en.wikipedia.org/wiki/Romer_v._Evans

    67. Jake, Washington, D. says:


      If your being “reasonably sure” leads to the comments you have made, I would hate to see you “absolutely sure” about something.

      The reference I made to a “moral code” as evident in the Declaration stems from the writers’ use of words like “Creator,” “created,” and “God.” I’m “reasonably sure” the “God” the writers refer to here is the same “God” who considers homosexual acts “unnatural” and “indecent” and “perverted” (see Romans 1:18-27 for a bit of history, even if you don’t go for the whole Jesus thing).

      Anyway, it may be a jump to go from “unalienable rights” that come from a “Creator” to trying to establish moral codes. The point in my earlier post was that the judge was claiming that equality trumps moral codes. I am guessing the judge is standing on the Declaration of Independence (at least partially) when he says equality is higher that morality. But is that not a moral statement? And doesn’t the document he stands on to champion equality use morality to lend equality its importance? If equality’s importance is derived from a moral argument, how can equality then trump morality?

      One more thing from some of your other comments. You say there are

      “two hallmarks of good governance: 1) What you have stated, that government is government by consent. 2) That government is constrained constitutionally on what those just powers are.”

      Is that all? What if a nation were governed by a man who had majority consent, who was backed by “just” laws as defined by the current constitution, who said every person of a certain race in his nation should be exterminated for the good of the nation? Would that be “good governance?” Based on your “two hallmarks of good governance,” it would be just peachy.

      And I am curious on another point. In the United States, why can a man not marry a donkey? Or why can a man not marry two women (or more) at the same time? Or why can a man not just marry himself, get the tax breaks, and whatever perks he has coming his way? Because marriage is, by definition, between a man and a woman. The union of a man and a woman is not equal to the union of a man and a man or a woman and a woman or a man and a donkey or whatever. Inferiority and superiority aside, they are not equal in the same way 2+2 and 3+3 are not equal. They are not the same thing by definition. I do not understand why anyone, straight or gay, would want to call them the same thing when they are so different.

      Anyway, I’m “reasonably sure” I know the difference.

    68. Jake, Washington, D. says:


      Something else: you say,

      "Ultimately, marriage is a private, contractual agreement entered into privately by two individuals. It exists between two people, and those people and God if that is your thing."

      If it is such a "private" thing, why do we have all the gay marriage demonstrations? If it is such a "private" thing, why all the publicity?

      Marriage is actually a very public thing. People identify you differently after you are married because you usually tell them you are married. You usually even have witnesses at the ceremony so when you wake up the next day you can't say, "hey! I never married you!" So the whole "private" argument is a fluke. And why is it so public? Why do we have witnesses? Why is the government, whether state or federal, even involved in the first place? Exactly because there are people who would drop all the responsibility of marriage, even after reaping its benefits, if they thought they could get away with it. Somewhere along the way, governments, led by the people, decided that marriage was something important enough to protect with law.

      Now it looks like something else has become more important. Exactly what that "something" is, I don't really know. But in the case of same sex marriage, I am not convinced we can honestly call it "equality."

    69. Pingback: No Rational Basis

    70. Ivan Douglas says:

      I'd love to know why straight people don't pass a law that forbids divorce. Let's start there if we want to protect the sanctity of marriage based on Bible morality. Read Jesus' words on the subject in your Bible at Matthew 5:31-32. Jesus condemns divorce–no interpretations can discredit his condemnation. Jesus does not make any such condemnation of homosexuality.

    71. Bill, New Mexico says:

      The natural rights assured by the Constitution were derived from the Bible, and the Bible and the Founding Fathers hated homosexuality, and never considered it a natural right. There is no right in the Constitution for homosexual marriage, it is an issue left up to the States, and the State of California has voted, democratically, that marriage is between a man and a woman. This was no surprise that a gay judge found for a gay cause.

    72. Pingback: The Big Story: For now, judge bars Calif. ban on same-sex marriage

    73. Drew Page, IL says:

      There are those who will argue that a ban on same sex "marriage" denys homosexuals equal protection under the law and therefore is a violation of the civil rights of homosexuals.

      I believe that the vote in California was an affirmation of the traditional, societal definition of marriage being the union of a man and a woman. Homosexuals who wish to enter into a lifetime partnership, or social union, wherein each partner promises to love, honor and cherish each other for richer, for poorer, in sickness and in health for as long as they both shall live should not be prohibited from doing so. Such unions could be given all the same legal rights as those who are married; just don't call it marriage.

      I wonder how those who oppose the ban on same-sex marriage would feel if a Muslim judge were to rule that stoning a woman to death for marital infidelity was OK. After all, we have a number of Muslims in this country and they do represent a "minority". We wouldn't want to violate the civil rights of that "minority" by punishing a Muslim for following the tennents of their Islamic faith for "honor" killing a daughter who married outside the faith, or for killing a homosexual offspring — would we?

    74. Arlene Billson, Sout says:

      Are people seeing the pure irony of all of this? People voted. That should stand, but it didn't. Not only was the vote of the people rejected, but one person (who himself is openly homosexual) took it upon himself to damage democracy with an abuse of power.

    75. R Miller, New York says:

      I fail entirely to understand how either approving or disapproving of homosexual marriage does any harm to marriage between a man and a woman. This is utter nonsense.

    76. Mike, Illinois says:

      At very least this issue should be left up to the states and not a biased judge who distorts milennia of experience. Also, the 14th Amendment has nothing to do with sexual behavior. Yes, before you disagree with that, consider people who are "ex-gay." No one is "stuck" being gay. Eitherway the 14th Amendment was not intended for behavioral matters. I know that's a lot of truth, but it's reality. Furthermore, the argument "he was appointed by Reagan" makes him somehow correct in his heavily hypothetical conclusions doesn't hold weight and only shows how blind the gay agenda is.

    77. Mike, Illinois says:

      This issue goes beyond the courts and government. It falls on the hearts and final decsions of men and women who make up this Country.

    78. Mike, Illinois says:

      Redifining marriage will never satisfy the soul for belonging, love, and affection. Marriage alone cannot satisfy these. Isn't this the real issue at hand. This is all about a heart condition that cannot be healed in the courts or by government.

    79. Ivan Douglas says:

      Stoning the adulturous women because of the Muslim minority actually makes the case for why the judge overturned Proposition 8. The religious views of the majority or minority have no place in the laws of our country. Only two of the ten commandments are relevant to lawmaking. It's certainly not a crime to ignore your parents, covet your neighbor's wife and jaguar or worship fal$se gods…now is it?

    80. Ron Branson / Los An says:

      I am Ron Branson, National J.A.I.L. Founder. The current history Re Prop 8 is that the People first passed Pop 22, a law defining Marriage. The California Supreme Court overturned it. The People then made it a constitutional amendment. The California Supreme Court upheld its constitutionality. This decision was then challenged in Federal District Court. The Federal Court has now overturned this constitutional amendment, determining the California Constitution in part is unconstitutional. This determination now faces challenge in the Ninth Circuit.

      There is a war between the Constitution of this country and its judges, between the supreme law of this land and the judiciary – only one can survive. Either judicial immunity will destroy the People, or the People will prevail over judicial immunity – there can be no third alternative. The overriding problem in our country is not the Constitution, Congress or the lack of laws, but rather a self-made doctrine created by judges, and for the judges, and that is the doctrine of "Judicial Immunity," which establishes "Judges can do no wrong!" In other words, judges cannot be held accountable to their Oaths of Office, the Constitution, or the laws of this land, as they are immune from lawsuit!

      This country cannot survive without subjecting of the Doctrine of "Judicial Immunity" to the findings of a People's Special Grand Jury created for that purpose. Well stated is the proverb, "No man is above the law!"

      Ron Branson

      National J.A.I.L. Commander-In-Chief

      www .jail4judges.org

      VictoryUSA @jail4judges.org

    81. Impeach Blobama says:

      This judge PACKS FUDGE. Since that's now "OK"–how long till this (or some other) Activist "judge" says doin it with ANIMALS is "normal", "OK" and is a "Civil Right"?


    82. Cathy Pope, San Jose says:

      I saw Ted Olson on FOX News Sunday with Chris Wallace today. Whoever is defending Proposition 8 had better get their ducks in a row before an appearance in front of the Supreme Court.

      Ted Olson could sell ice to Eskimos.

    83. Tony, San Jose says:

      Walker's decision is flawed. Prop. 8 recognized two classes, men and women, and provided that the marriage relation is valid only between them. On its face, the proposition treats both classes equally. Walker's decision tries to convert this valid classification into one that discriminates, because it did not recognize that there is a class of men and class of women who wish the marriage relation be valid within each of these classes. Thus, Walker found discrimination because the state failed to make a classification, not because the proposition treated the classes it created in a disparate manner. Thus, the decision is flawed, because he holds that the discriminates for what it did NOT do. If the state did not take a certain action, how can there be state action?

    84. P. J. Moran says:

      Judge Walker makes the same mistake judges have made for quite a long time. Failing to recognize the limits of his own knowledge, he seems completely unaware that moral rules more often than not derive from practical economics. In the agrarian world of the last 7-9 millenia children were economic assets. It was best to raise them in families. Until recently, procreation was not available to gay couples and, by nature, is less available to gay men than women. Currently, gay couples do not procreate the same percentage of children as male female couples do. Although we are transitioning away from agrarian society, nations that do not procreate enough are in demographic trouble. Consider Russia and even many EU countries. This has serious impact on State and community viability as a social and thus economic unit. The State does have a legitinate interest in promoting traditional marriage. Expressing no opinion on the current state of sexual legal affairs, let me note that Judge Walker's Constitutional argument is based on an invalid assumption. Further his equal protection theory fails because under the U. S. Constitution sexual preference has never been a suspect category nor could it be. In terms of gender, all males are prohibited from marrying males whether they are homosexual or heterosexual. The same is true for women. It is indeed unfortunate that the caliber of our legal education and thus our legal reasoning have deteriorated to such a pitifully inadequate level. Because of it we see the constant erosion of the rule of law and the demise of the Constitution's stature to a level below that accorded to a consumer contract to buy a toaster, the latter being given more weight as to the meaning and intent of its language. Amending without the due process set out for Constitutional Amendments deprives all citizens of due process of the law.

    85. JimH, Colorado Sprin says:

      Did you know that public opinion was 90% in favor of banning mixed race marriages when it was overturned? Does that mean that whites and blacks aren't considered equal and therefor not allowed to marry since they'd be unequally yoked?

      Sounds like the judge did his job. That's actually his role in the trinity of the U.S. branches of government…you should actually study this in school!

    86. JimH, Colorado Sprin says:

      Illinois Mike: as someone who went through 5 years of conversion therapy to the point of electric shock treatment, I can indeed tell you that conversion therapy didn't work for me. Of course, the pastor did recommend upping the dosage until by eyes were burnt…but hey, I wasn't struggling with lust (the sin), I was just gay (not a sin at all). Freak radical fundies forget that the behavior is the sin, not the condition. Reread your Bible…and then recall that your Bible is meant for the church, not for the nation nor folks who are non-believers. The church nearly killed me…your version of Christ isn't correct at all.

    87. Chris, VA says:

      I love how some of you argue that "Civil Unions" grant all the same rights as a heterosexual marriage. If that's the case, why call them something different? I'm pretty sure that's the same thing as "Separate, but Equal". I hope that my children can pick whomever they love to marry. Isn't love what marriage is all about?

    88. Billie says:


      Marriage has a meaning that without distortion, a three year old mind is able to conceive.

      I love how after 2000 years of it's existence, people all of a sudden weaken to intolerance of a word with a simple definition. To add conflicting meaning to the meaning derived from a faith is blasphemy. And to do it for government recognition or rights or whatever, is pathetic. Why impose and burden the public with these personal, petty, private problems of this social intolerance they've created? Marriage is a balance of genders homosexuality cannot define. I love many. I married one.

    89. David, Houston, TX says:

      For 2,000 years the definition of marriage was “a man and a woman of THE SAME RACE”. To say otherwise is disingenuous. A few hundred years ago the wife was considered the property of the husband. Definitions change. Traditions change.

      PS: Marriage is a secular institution. You do not have to be religious to get married. You do not have to get married in a church.

    90. Randy King says:

      Civil Unions can never:

      1) Allow a man to define himself as a woman

      2) Allow a woman to define herself as a man

      3) Allow a scientifically created family to appear natural

      If all the perverts want is to appear as though they are normal then why don't they hook up with a member of the opposite sex and be normal?

      In Loving v Virginia SCOTUS opined:

      Marriage is a fundamental right; our survival and very existence is dependant upon it.

      Nobody in their right mind could claim that our very existence was dependant upon same sex enthusiasts rubbing their reproductive organs against each other.

      Same sex enthusiasts are on a mission to pervert the world around them in a vain attempt to make their depravity appear acceptable to themselves; and to God.

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