Judge walks over voters, marriage

Advocates of traditional marriage were trampled earlier this month by a San Francisco judge who struck down California’s constitutional amendment which keeps marriage between one man and one woman. Judge Vaughn Walker apparently missed the memo about the seven million voters who support marriage between one man and one woman. Memos about the need for judicial restraint and the necessity for judges to recuse themselves in cases where there might be a conflict of interest apparently did not reach his desk either.

Over the last year, we’ve seen judges subvert the democratic process by substituting their personal preferences and policy choices for duly enacted laws. Most notably, in July, Federal District Judge Joe Tauro struck down the 1996 Defense of Marriage Act, which garnered the votes of 427 Congressmen and was signed into law by then President Bill Clinton. Another federal court insisted that Ten Commandments displays are off limits in two Eastern Kentucky courthouses, perhaps a not-so-subtle indication that judges often confuse themselves with the Almighty Lawgiver Himself.

Judicial restraint is clearly in short supply these days, particularly on the federal bench, but now we’re finding that in this most recent case of judicial overreach, Judge Walker had a conflict of interest.

The biggest out-of-the-closet secret since the ruling is that Walker is in a relationship with another man—a detail which legal experts say should have led to his recusal. Walker failed to disclose his potentially disqualifying bias since it could benefit him and his partner should they choose to get married. Amazingly, Walker is now telling traditional marriage advocates that they cannot appeal the ruling because they lack standing. This is like a referee telling the ball team that since they are down at halftime, they cannot come back for the third quarter since they are losing. Such things happen when the referees are no longer objective and become allies with one of the teams.

Dale Carpenter, a University of Minnesota constitutional law professor told Fox News, "What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court, and then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that." Carpenter, by the way, supports same-sex marriage.

Additionally, Judge Walker discredited the testimony of traditional marriage and family formation expert David Blankenhorn who was one of the two witnesses defending the marriage amendment (four other witnesses declined to testify because they feared for their safety). Blankenhorn’s testimony, according to Walker, “constitutes inadmissible opinion testimony that should be given essentially no weight.” Walker also took a swipe at the faith community when he said, "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."

Walker’s actions discredit the judiciary, which should be in the business of “calling balls and strikes” as Chief Justice John Roberts once said. When they get in the game and take sides, they become something other than a judge. The biggest losers in this sad story are the voters and the democratic process itself. Why vote if one judge can cancel the vote of seven million people? Why contribute to a cause if it’s likely to be defeated in court? Why care?

Walker’s actions were so egregious that the reliably liberal 9th U.S. Circuit Court of Appeals put a hold on Walker’s ruling until December, thus preventing gay marriages from taking place this week. While Judge Walker once again opened the door to gay marriage in California, he cannot entirely overrule the verdict in the court of public opinion: marriage is between one man and one woman, and the democratic process is the most equitable way to decide such contentious issues.

When Judges play God

In 2008, American Atheists filed a lawsuit against the state claiming they suffered sleeping disorders and "mental pain and anguish" because the Kentucky Office of Homeland Security recognized "the safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God."
Well, they can finally get some rest. Last Wednesday, Franklin Circuit Judge Thomas Wingate struck down the part about relying on God, which leaves legislators and the rest of us wondering who we should now rely on.
"This is the very reason the Establishment Clause was created: to protect the minority from the oppression of the majority," Wingate wrote in his 18-page opinion.
Even if this was true, who is to protect the majority from the tyranny of the minority?
The trouble with Wingate's ruling is that it has no basis in our history. According to our founding political document, the Declaration of Independence, our nation is predicated on the idea that law comes from God. Law does not originate in people. Nor does it reside with special groups who clothe themselves in black robes, even if they might confuse themselves with the Almighty.
Like the Office of Homeland Security, the Declaration states, "With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." So if it was good enough for Thomas Jefferson and the other 55 signers to firmly rely on God, why is it so wrong with Kentucky acknowledging that our protection comes from God as well?
To be consistent, atheists and sympathetic judges ought to take on the preamble to the Kentucky Constitution and the Latin motto which was enacted in 2002. Then again, consistency seems to be in short supply these days. The official Latin motto is "Deo gratiam habeamus." It means "Let us be grateful to God" and finds its basis in the Preamble of the State Constitution which says, "We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution."
Wingate justifies his ruling by applying the First Amendment to this case, but such application is foreign to our history. The First Amendment was enacted to keep Congress from imposing a national church. It was not originally applied to states; some had state-sponsored churches into the early 19th century. It was not until the 1947 Everson ruling that the First Amendment was applied to individual states.
Sponsor of the Homeland Security provision, State. Rep. Tom Riner (D-Louisville), responded to the charge that the language establishes a religion. "They make the argument ... that it has to do with a religion, and promoting a religion," Riner said. "God is not a religion. God is God."
At a very basic level, Wingate's actions violate the separation of powers and usurp legislative authority. Legislators legislate. Judges are supposed to apply the law. Legislators hammer out public policy openly and consider public input. Judges render decisions privately with or without regard to public input. By striking down the legislature's action without a firm basis in history or precedent, Wingate shifted the balance of power in his favor as other unaccountable judges have done for decades. This judicial activism is an undemocratic way of going about the Commonwealth's business. By the way, when was the last time the legislature told a court it was wrong?
There are 32 references to God in state statutes and the constitution. The question is: who should decide how and when we acknowledge God – the people through their legislators, or judges who sometimes confuse themselves with God?