Fair-minded Americans have welcomed the recent wave of court decisions striking down bans on same-sex marriage. The LGBT community and its allies have been positively euphoric.
Of course, the homophobes and those who pander to them have had a somewhat different reaction.
Here’s the thing: people who don’t approve of gay people, or whose religious beliefs somehow require them to see gays as sinners and same-sex marriage as an abomination, are entitled to those beliefs. It’s a free country. And elected officials are entitled to disapprove of judicial decisions, although they are not free to disregard them. All of these debates over what is best for the country, what constitutes fair play, what discrimination looks like…all of the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation.
Abject ignorance is not.
Which brings me to Jan Brewer, Governor of Arizona, and her rant in the wake of court rulings that invalidated her state’s ban on same-sex marriage.
“It is not only disappointing, but also deeply troubling, that unelected federal judges can dictate the laws of individual states, create rights based on their personal policy preferences and supplant the will of the people in an area traditionally left to the states for more than two hundred years.
Simply put, courts should not be in the business of making and changing laws based on their personal agendas. It is not the role of the judiciary to determine that same-sex marriages should be allowed.”
Sorry, Governor Brewer, but your civic ignorance is showing. Courts are absolutely “in the business” of “supplanting the will of the people” when that will violates the Constitution. As I pointed out on this blog yesterday, the Founders of this country created an independent federal judiciary (one that was not elected) and provided those judges with lifetime tenure, because judges were supposed to be responsive to the Constitution and the rule of law—not to the electorate.
Congress and the Executive branch were supposed to respond to majority preferences; the judiciary, however, was supposed to safeguard individual and minority rights and to ensure that the other branches did not violate the Constitution in their eagerness to pander to popular passions.
I have repeated this basic premise of American constitutional law over and over—in my columns, my blogs and my classrooms. Let me do so again.
The Bill of Rights answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of interference by government scolds.
The Bill of Rights also limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. A majority of your countrymen cannot vote to make you a Baptist or an Episcopalian; they don’t get to vote on your reading materials or your political opinions or your choice of a life partner.
People who don’t understand the most basic operation of our system—like Arizona’s Governor Brewer, or Indiana’s Mike Pence—misunderstand and misrepresent court decisions that uphold the right of individuals to live their lives as they see fit without sacrificing their right to equal treatment under the law.
The fact that we keep electing people like this is what I find “deeply troubling.”
Same-sex marriage doesn’t threaten the republic. What threatens the republic is the election of people who are totally ignorant of the Constitution they are sworn to uphold.
An article posted on Facebook yesterday referenced Parsons are being forced to perform same-sex marriages or be jailed and/or fined. What it didn’t post was that this is an ordinance activated in Cour D’Alene (sp?), Idaho, against two Parsons who happen to be a married couple who refused the request of a same-sex couple as this would be against their religious beliefs. This is of course their civil right to refuse. They are being fined daily and live with the threat of jail until they do perform these ceremonies. I have no idea if other cities are trying this tactic yet; if not, they will probably start after learning of the Idaho city taking this action. Will Arizona jump on that bandwagon? Is this the beginning of another ugly, sex-based, pseudo religious legal battle on the national level? Won’t surprise me; we can’t seem to get these politicians out of our beds and it is getting mighty crowded.
Great article, Sheila….well done ….well said. Paul would definitely approve.
I grew up in the 60s. In our 5th grade civics class, we learned about democracy and majority rule, and about checks and balances, and lifetime tenure judges who applied the constitution and the bill of rights to protect individual freedom. About the social contract, and about our robust system of public services. All set against the backdrop of the civil rights movement, which was held out as an example of what made America a beacon of hope in the world. I grew up in a conservative little farm town in central Illinois, not a commune in California – with parents who were staunch republicans. Where in the world did these folks grow up?
JoAnn, The folks you referenced who own the wedding chapel are doing business as a for-profit enterprise. If they were operating as a religious organization, the Free Exercise Clause would protect them against sanctions. (I should also note that, despite the right-wing version of their “victim-hood,” local authorities said they’ve received no complaints and thus threatened no action against them. It’s pretty much a “made for TV” fantasy.)
Love your blog. Thanks for your efforts.
The one problem with lifetime tenure is when you begin to get “Activist Judges” like the majority of the Supreme Court. We can’t get rid of them.
Thanks Sheila; too bad the conservative group who posted that Facebook article didn’t include that information. Nor did the other sites I Googled for reference.
I wonder how many politicians like Gov Brewer are duplitous vs ignorant? I think that she’s preaching to her choir and just doesn’t care what the impact of her words might be. Pure reelection hysteria. Likes her celebrity and says whatever her contract with her handlers requires of her.
I think that you are giving her too much leeway Sheila saying that she’s ignorant, a correctable problem that we all suffer from in many fields other than what we devote our lives to.
We saw the movie “Fury” last night. A perhaps overdone WWII drama about the ultimate horrors a self serving but effective politician can inflict on mankind. That’s what democracy protects us from. The stakes can get that high.
As in war, the time to win is during preparation not execution.
We need to and can limit the damage to democracy done by rule of privilege to what’s already been inflicted on us. A high but acceptable cost. All it takes is informed voting. For every informed voter their are those voting what they’ve been sold as their brand. We simply need to out number them.
Please vote folks. Prof K’s blog shows why it is so important.
Sheila, how come your blog doesn’t fix my grammar and spelling?
Today’s Blog dovetails rather nicely with yesterdays Blog about buying Judges. The Reactionary Right has been in a lather ever since the Warren Court began dismantling Jim Crow. The “Founding Fathers” of our nation epitomized the narrow White Male Privilege. The various Political and Social Movements: Emancipation, Unionization, Woman’s Suffrage, Civil Rights Struggle, etc., were all bitterly opposed by Reactionaries. Now Gay Rights are being fanatically opposed.
The Pence’s and Brewers and others of their ilk, understand the mechanics of our system and if a Judicial Machine produces a ruling contrary to their beliefs, then they want to change a few gears (judges) to produce the result they want. It is vital they continue to publicly resist to prove to their base they are not infected by any strains of a political disease that would diminish their support among their base .
In addition to what Sheila said about the wedding chapel in Idaho, under this ordinance no one can be put in jail for their refusal to marry couples, and a fine, if one is even imposed, can range from $100 to $1000. It would be a one-time fine only.
Great Sheila, as I would expect you hit the nail on the head. It is unfortunate that the ignorant won’t learn this. Maybe it should be taught in church.
“taught in church”?
By my unscientific survey, there are more interpretations of the Gospel than of the Constitution, and a large number of Christian denominations to match. If Christians can’t agree on “God’s Word”, then how can they agree on the original intent and meaning of the document written by Madison, Hamilton, Franklin, Washington, and Mason?
😉
Yes. Mike Pence took an oath to uphold the Indiana and U.S. constitutions when he was admitted to the Indiana State Bar (and when he took office as Governor). Either he doesn’t have a deep understanding of either or he has no problem trying to subvert them to the will of his political base.
I was in Arizona when Governor Brewer was making her statements. As an attorney, I thought the same thing you think—well, there is the Constitution, and the federal courts are tasked with interpreting its precedence over laws and actions that interfere with the rights and responsibilities contained therein.
Isn’t this the same “freedom” George W. Bush said the rest of the world envies.
…the cacophony that surrounds social change is both predictable and within the bounds of democratic deliberation. Abject ignorance is not.”
Sadly, abject ignorance seems to be both predictable and a source of pride for many “I’m-not-a- scientist GOPers.
I wonder how our wondrous politicians and judges compare to the ones of 100 years ago. On one hand, I’m inclined to think that things are more complicated now, but maybe not. Maybe the ones we have are pretty much like the ones we have always had, who Mark Twain so aptly described.
In fact, the standards that apply are that the state has to show a compelling interest in discriminating against gays and lesbians in order to do so. This was the beauty of the lawsuit against California’s Prop 8. When push came to shove, and all of the experts that the right had who said all sorts of terrible things about gays and lesbians and their marriages were asked to actually testify to these terrible things under oath for a deposition, only two showed up, and they proved to be very weak witnesses. This is the reason ‘defense of marriage’ acts have been falling like dominoes; there is no defense for ‘defense of marriage’.
Lamenting what is perceived as an increasingly politicized judiciary seems to be an old trick. I recently had the misfortune of reading Rick Santorum’s “It Takes a Family”, which posits “liberal activist judges” (among others of course) are responsible for ruining our society. I’m sure it would not be difficult to find other examples throughout history. I don’t see ignorance as much as dog whistle politics.
It might just be silly/ignorant/misguided but for the fact that conservatives are sincerely engaged in this behavior. ProPublica put out a terrifying piece a couple of weeks ago by Nina Martin profiling Alabama Supreme Court judge Tom Parker. Titled “This Alabama judge has figured out how to overturn Roe v. Wade”, it details how Tom Parker is leveraging his position as a judge to the maximum extent possible in order to overturn Roe v. Wade.
A sample:
“…As a judge, Parker has developed the decidedly unusual habit of authoring concurring opinions to his own majority rulings in cases that hold particular interest for him. In his concurrence to Hamilton, he cited advances in medical and scientific technology as part of a larger, painstaking argument asserting that a centerpiece of Roe — that states cannot ban abortion before the point of viability — was “arbitrary,” “incoherent,” and “mostly unsupported by legal precedent.”
Zeigler marvels at how Parker has used the concurrence to strategic effect. “It’s like he’s writing a law-review article without having to go through that process, plus he gets a much wider audience,” she said. And unlike a dissent, a concurrence conveys a certain legitimacy — the idea that the author is on the winning side. “It is much likelier to be noticed and captured and repeated in future cases.””