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The Reversal of Proposition 8: A Dangerous Precedent

CL22 - hbratton notxt

©Heidi Bratton Photography

The Ninth Circuit Court of Appeals has acted to reverse the democratic decision of the people of California to confine marriage to its traditional parameters of a man and a woman. In making this decision, the court decided that it could overturn the will of the people of California on the basis of what is known in legal circles as “the rational basis standard.”

When evaluating the violation of fundamental rights, the court has often used a standard of “strict scrutiny” in cases involving racial or religious discrimination. By that standard, the petitioner frequently wins. In cases of gender discrimination, the court has relied on a kind of intermediate scrutiny.

The rational basis standard is a different bird. We were taught (as have been law students for a long time) that under the rational basis standard, the government would almost always win because the burden of establishing irrationality is so high. My liberal New York Jewish law professor taught us that the court would only find a state action irrational if it did something like declare that everyone must wear one green shoe on Tuesday.

The Ninth Circuit has now effectively said that to believe marriage is a matter for a man and a woman is to be so irrational as to declare that everyone must wear one green shoe on Tuesday.

Now, I understand that many readers may favor expanding marriage to include same sex unions. And there are reasons to support that move. But the case is not so overwhelmingly strong as to render the opposite conclusion nonsensical.

This is an important case. If a handful of individuals can declare a particular point of view completely irrational (a democratically expressed view), then we are not a republic. We are an oligarchy.


Hunter Baker is Assistant Professor of Political Science at Houston Baptist University. He is author of  The End of Secularism.

(This article is a product of the Acton Institute — www.acton.org, 161 Ottawa NW, Suite 301, Grand Rapids, MI 49503 — and is reprinted with permission.)


  • When “the consent of the governed” is disregarded and/or suppressed by the political class then indeed we have government of, by, and for the few, i.e. oligarchy. Add the dimension of corporate political power as per the Citizens United ruling in 2010, and we have plutocracy.

    So the United States is currently some sort of combination of oligarchy and plutocracy at the Federal level. We might modify Ben Franklin’s “a republic if you can keep it,” to read “if we the people can restore it.”

    • CCR

      Bob: I never thought that I would live to see the day when the USA would resort to Bolivar style government. Poor Americans! If they only knew what is in store for them!

      Here is the deal: take as a model the resistance model set by the Polish people. Of course even putting all the US bishops together you cannot get one Sapieha or even half a Wyszynski but I digress.

      Since the dawn of the Republic there has been a cloud of suspicion floating above Catholics: are they loyal to the Republic or to the Pope? etc. etc. Well, that is asking a very ignorant question but the core of the matter is that Catholics are suspected of not being completely loyal. This is our opportunity to dispel all those old suspicions: let’s roll!

      No more petitions and all that sissy stuff that only gives the government the list of names they really want for other purposes. No more marching with posters and chanting silly slogans. You could put six million people in DC and it would not change one single policy.

      One has to act like John Paul II did in Poland. Everything we do everyday must be oriented to bring down the spiritual root of this madness. Information must be passed to the people so they learn the truth. Then we must pray and resist in small ways but constantly.

      If we start a truly intense prayer campaign today we can count on the complete collapse of the oppressive system within months.

  • noelfitz

    CCR,
    I see here:”Since the dawn of the Republic there has been a cloud of suspicion floating above Catholics: are they loyal to the Republic or to the Pope?”

    Sometimes I wonder.

    I thought the ultimate appeal in the US was to the supreme Court and I am told most of its members are Catholic, the remainder are Jews, and it has no Protestant members.

    You in the US are fortunate.

    Here in Catholic Ireland we have no ambassador to the Vatican, it is being proposed that no member of Catholic organizations be appointed to State Boards, before promotion or employment civil servants and candidates should be examined to make sure they do not put the interests of the Vatican ahead of those of Ireland, priests should report to the police what they hear in confession and money should be given to non-Catholic private schools only.

  • viney

    In general – “the will of the People” should be suspect. Majority rule can be as tyrannical as the ruler by a dictator or an oligarchy. Our Constitution (my it rest in peace) is no longer followed; it established LIMITED GOVERNMENT. It protected people from majority rule – and it allowed people, for the most part, make their own choices, live their own lives, and benefit from making good choices, and suffer when they made bad choices. But leftists want to equalize/redistribute wealth, taking from the hard worker and giving to the lazy. They establish health care programs so that the healthy have to pay the same rate as those who overeat, smoke, fail to exercise, etc.

    We have too many VOTERS who decide who to vote for based on the promise of delivery of stolen goods (property taken from others). “What is in it for me?” is more important than ..”Will he abide by the Constitution??”

    We have lost the Republic. Even if a particular law can be overturned because the people rise up in outrage over a particular issue, the people still won’t ask for the government to stop borrowing, not spend more than they take in, not overtax the people, etc. We are following in the footsteps of Greece; the majority of the people will be willing to riot when the money runs out. We are doomed, and too stupid to recognize the problems and what could be done to reduce the problem.

  • CCR

    Viney: If I am not mistaken Ben Franklin said (paraphrase) “When the People realize they can vote to give themselves the contents of the Treasury, it’s over.”

    I agree with you. That is why I believe that the only salvation for the Republic lies in some action by God. I believe the Founding Fathers realize this moment we are living was inevitable and they trusted in God to preserve the Republic when the virtue of the citizens was no longer able to sustain it. In my humble opinion that is the meaning of both the symbol of the Trinity atop of the pyramid on the US Dollar bill, and also the reason why they selected both mottoes: “In God We Trust,” and “Annuit Coeptis” (Bless Our Undertaking.)

    We have much to praying to do.