If People Vote the Wrong Way, Judges Change It: California's Proposition 8

We have just seen the umpteenth example of "“judicial imperialism”, by which unelected judges through their verdicts supersede laws passed by elected representatives of the people".

Proposition 8, a state constitutional amendment banning same-sex marriage in California, was passed in November 2008 after the California state elections in which 52.24% of the electorate voted in its favour.

So, here we are in the presence of legislation approved not by the elected representatives of the people but, more than that, by the people themselves.

Two homosexual couples, Kris Perry and Sandy Stier, and Jeff Katami and Paul Zarrillo, after being denied a marriage licence in California sued to overturn the ban.

Finally, after a lengthy process, Proposition 8 was repealed on 28 June 2013 by court ruling.

The subversion of the popular will by judicial activism is increasing and increasingly worrying, and the so-called "gay rights", a euphemism for the phenomenon of a vociferous and culturally powerful minority taking a morally confused, scared majority - scared of being called "bigot, homophobic" - hostage and imposing its will on the rest of the population, is one of the stages where judicial overreach is played most often, not just in America.

George W Bush, who in comparison to Obama is a first-class statesman whom now Americans have started missing, said about same-sex marriage:

Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.

Professor of Law and blogger Stephen Bainbridge writes:

The founders of our republic set up a carefully nuanced set of checks and balances, but the last couple of generations of Americans have allowed nine unelected old men and women to seize control of a vast array of deeply contentionous social and cultural issues of national import knowing that they are immune from being held accountable for their decisions. Our judges now use the law to impose elite opinion about how society should be ordered regardless of the democratic will. We have become courtroom spectators rather than participants in the democratic process. It is as the famed First Things symposium put it, The End of Democracy.

Telegraph columnist Gerald Warner maintains in his post about California's Proposition 8:

The lobby for same-sex marriage may have made a serious error of judgement in choosing to make this particular law in this particular state a test case. It is a mistake because, in this instance, they are not trying to reverse some local statute of years’ standing, but to negate the majority will of their fellow citizens, recently expressed at the ballot box. It puts the ultra-liberal lobby squarely in confrontation with the defining act of the democratic process: the secret ballot of a universal suffrage electorate.

It also seeks to subvert states’ rights, the issue on which the American Civil War was fought and which is increasingly coming back into focus, as the culture of the liberal east coast relentlessly attempts to override the core values of the more conservative states. Obama’s healthcare legislation is another issue that has lately reinvigorated that antagonism. Modern history and politics are full of startling examples of old fault lines suddenly reopening: who, 50 years ago, would have forecast, for example, that Yugoslavia would fragment so violently? America’s so-called “culture wars” reflect internal tensions and divisions against which the fabric of federal unity may not be indefinitely immune.

Yet the increasing marginalisation of voters’ powers goes far beyond the United States. A referendum result such as Proposition 8, if voted through in Europe, would simply have been negated by the EU, forcing the offending electorate to think again. The major political phenomenon of our times is the increasingly debilitated condition of democracy.

It is interesting to see how the socio-communists, who pretend to be for democracy and freedom, can suddenly reveal their true, historical colours of totalitarianism, whether achieved by revolutionary or, as in this case, judiciary means.

A commenter to the above Gerald Warner post summed it up nicely: "When the lib'rel/progressives don't get what they want, they go to the bench to get things their way".


Photos from PolicyMic