Be careful what you ask for…

Over at Patterico’s Pontifcations Jack Dunphy has this post Starting with Chapter Two, where he comments on last Friday’s Los Angeles Times op-ed piece Lose the Ruling, Attack the Judge, that the writer puts the cart before the horse.

Dunphy points out that of course, the writer Jon W Davidson likes the decision. After all he is the the legal director of Lambda Legal, the organization that brought the federal lawsuit attacking California’s Proposition 8. But that his reasoning is flawed, as he starts in the middle of the debate. Of course he likes the decision, but he fails to address the background.

Jack Dunphy proposes an alternate title for the op-ed ~

One of the commenter’s on Jack Dunphy’s piece writes ~

“When you don’t win the argument at the ballot box, as indeed advocates for homosexual marriage have failed to win in even a single instance in the 31 times they’ve tried, take the campaign to the more accommodating venue of the courtroom. There, a lone judge, blessed with finely attuned senses denied to both his predecessors and the ignorant proles of the voting public, can discover a constitutional right that mysteriously remained undetected through all our nation’s history. That seems to be the favorite tactic of groups advocating for same-sex marriage.”

The real issue here is not “gay marriage”. It’s the most important issue in all of politics, perhaps in all of life: Who decides?

Are the people the ultimate deciders, or the judges? Is this a country where the people govern themselves, or a country where the people are governed by an unaccountable elite? These are the question the American Revolution was fought to resolve. Clearly, they are still not settled.

— 8/15/2010

Another commenter ~

Had the people voted to accept same sex marriage, I would have accepted it in spite of voting against it. Since this has been imposed by a single judge, who seems to have a political agenda, I will not accept it. The judiciary has usurped the legislative power, and for that matter the executive power, for a long time. It is time to impeach and remove some judges. They serve for life but as a condition are required to conduct themselves in accordance with the Constitution and the laws.

When rights assured by the Constitution are in conflict, it is the judiciary’s job to protect and define those rights. It is not their job to go searching for “rights” that only apply to specific groups and elevate them over those that apply to all. Our out of control courts are acting as agents of a political agenda, and one that cannot win at the polls. Judges are not gods.

— 8/15/2010

Another comment in reply to a commenter noting that customs have been different in other times and places ~

It doesn’t have to be (and never had to be) THE inflexible rule. What matters is that it has been OUR rule.

We’re not bound by the customs of the Yanomami or the Seljuk Turks. But we in the West DO have our OWN customs, and yes, we’ve been bound by them for thousands of years. (see ancient Rome, that’s 3 millenia ago, and so yes, thousands of years.)

Now it’s certainly true that we might elect to change our rules and customs over time, so… goodness me! Did I just use the word “elect”? Didn’t we in fact hold an election on this very subject?

“One man, one vote” is a pretty principle, if the one man in question just so happens to be a federal judge.

— 8/15/2010

From Time Magazine ~

And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet’s nest he may have been better off leaving undisturbed. “If the proponents don’t have standing to appeal, then it’s entirely plausible that the courts will rule that they did not properly have standing to go to trial,” Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. “This is an issue he glossed over when he allowed them to intervene in the trial.”

Amar says that if the Ninth Circuit agrees with Walker that the proponents don’t have standing to appeal, the judges may well decide they shouldn’t have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.

In that event, what happens next is anybody’s guess. “We’re in uncharted waters here,” Amar told TIME. (Read more At Time Magazine)

Patterico has a couple other posts up on this subject, see here which starts ~

I have an upcoming essay about the way in which the value of our votes has been diminished over time. One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges, who issue rulings striking down our laws — sometimes after a trial where the people supposedly charged with defending the law actually disagree with the law.

A comment on this post~

Jerry Brown should be out on his butt for non-feasance of office. He “didn’t feel” it was right? Who the hell asked you?

— 8/13/2010

So, what do we have…a constitutional amendment passed by the voters in California. Undefended by the folks that are charged with defending California and Californians. Declared un-constutitional by a judge finding a “new right” that did not exist before his ruling;changing the meaning of a “word” and an institution that has not ever in our culture included that right. Standing a great chance of being thrown out of court entirely by a higher court since the trial judge says the same folks he gave standing to, he now declares have no standing after he gave them standing in the trial. Or, as Patterico points out his reasoning in his latest post that there is a rather good chance Prop 8 will be vindicated by the US Supreme Court.

But that final option leaves us with a bigger problem, if it isn’t heard on correctness of the grounds of the trial judge’s ruling, rather than the correctness of Prop 8

“Are the people the ultimate deciders, or the judges? Is this a country where the people govern themselves, or a country where the people are governed by an unaccountable elite?”

No matter your stand on Prop 8 or the ruling, we should all be throughly unhappy with this travesty.

See also Tyranny of the Minority from Saturday’s Washington Times

update 8/16/10 Ninth District Issues Interim Stay on Prop 8

Again at Patterico’s The increasing worthlessness of your vote.

Crossposted

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