Thursday, June 27, 2013

The Ivory Cubicle | In Defense of the Prop 8 Ruling

In the aftermath of the Supreme Court’s ruling on California’s Proposition 8 yesterday, it’s doubtless that Chief Justice Roberts is going to get flack for allowing the death of Proposition 8. This isn’t the first time that Roberts’ credentials as a Bush-appointed conservative have been called into question. In the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, Roberts cast the deciding vote in affirming that Obamacare was constitutional. Back then, the internet went abuzz with allegations that Roberts had abandoned the conservative position, as well as speculation that Roberts was “playing the long-game” by making a strategic move that would give conservatives the election.  This year, in Hollingsworth v. Perry, Roberts again cast the deciding vote, writing a concurring opinion which allowed the destruction of Proposition 8 over procedural issues.

Well, the Huffington Post smells a vast right-wing conspiracy to empower big business. But, then again, the Huffington Post smells a lot of things which tend to negatively affect their cognitive abilities. I think the real reason is a bit less pernicious, namely, that Roberts is actually doing his job to uphold the rule of law.

Upholding American Order

Let me explain. We as conservatives tend to like rallying around what is right. We have a traditional, moral conception of what marriage is, and we are justly angered to see it undermined.

In Hollingsworth v. Perry, that ire is amplified due to the clear violations of the rule of law and abdication of duties which occurred during the initial stages of the case. The people of the state of California voted to amend the constitution to define marriage as the union of one man and one woman. That decision was then unjustly overturned as unconstitutional by a district court judge, and the state of California, being predominately liberal, refused to seek justice by appealing the case further.

The Ninth Circuit Court of Appeals, being desirous of weighing in and creating case law whenever possible (in clear breach of judicial precedent, which seeks to make the most narrow ruling possible), accepted the appeal of a private party whose claim to legitimacy was dubious under Article III, Section 2 of the United States Constitution. The Ninth Circuit then proceeded to issue a decision striking down the California Constitutional Amendment as a violation of the United States Constitution.

At this point, we saw clear judicial activism from both the district court and the circuit court, and we saw the State of California providing only nominal fulfillment of duty by failing to appeal the decision of the lower courts. So the case went to the Supreme Court. And in the course of deliberations, it became clear, at least, to the mind of the majority of the justices on the Supreme Court, that the plaintiff did not have standing under Article III, Section 2 of the United States Constitution to bring this case, and that an order to vacate the standing cases would leave the district court’s ruling on the table – namely, Proposition 8 would be struck down.

The situation is sticky. On the one hand, the justices could argue “they did it too” and engage in judicial activism, granting standing to a party that clearly did not have it. They could appeal to the rallying cry of Christian civil disobedience, arguing that “God’s law trumps man’s law.” Or, they could stick to the rule of law and declare the suit illegitimate according to the United States Constitution.

The first alternative is clearly not in order. Ends do not justify means, and tit-for-tat is a horrible way to run a country.

The second alternative seems more plausible. After all, isn’t MLK, civil disobeyer par excellence, considered an American hero? And didn’t Rosa Parks just get a statue in the U.S. Capitol building? We recognize those who violate the rule of law in deference to a higher law.

But here’s the rub. When MLK and Rosa Parks appealed to a higher law, they did not claim to be upholding American law. Nor were they granted the responsibility of upholding the rule of law. They had a different calling altogether. And when they violated the law, they were willing to submit to the legal penalty for doing so.

Roberts, however, has been called into the role of being the Chief Justice of the United States Supreme Court, a court which is theoretically dedicated to the task of upholding United States law. His calling, his vocation, if you will, is the preservation of the laws, procedures, and institutions which govern our nation. By stepping into one vocation, he by necessity steps out of another. One cannot defend and disobey the rule of law simultaneously. If he wishes to engage in disobedience to the rule of law, he must first step out of his job as sworn defender of that rule of law. If he wishes to rectify blatant violations of the rule of law, as occurred in the district court, while serving in his capacity as Chief Justice, he must still do so by adhering to the rule of law. Unfortunately, Hollingsworth v. Perry did not give him the opportunity to do so.

Which leaves us with the third alternative, upholding the rule of law and declaring the suit illegitimate according to the United States Constitution. Or, to put it another way, fulfilling the oath given by Roberts upon assuming his duties as Chief Justice of the United States Supreme Court. Adherence to law is the foundation of a republic, and a subversion of law by those who are entrusted to defend it undermines the foundations upon which this nation as built.

If those who have been called to uphold the American rule of law instead become legislators, then we will move from a republic to an oligarchy of nine. That, I may add, is precisely what American conservatives detest in liberal judicial activism.

Posted by Nick Barden
Photo: Chief Justice John Roberts signing documents during his investiture ceremony in 2005.

Disclaimer: The views expressed in this blog, even more than other blogs, are not representative of Generation Joshua as a whole.

Check out Generation Joshua's previous commentary on Hollingsworth v. Perry.

"Standing Strong in the Wake of Hollingsworth v. Perry" by Mike Montoya, June 26th, 2013.
"Hollingsworth v. Perry: A Brief Observed" by Cordell Asbenson, April 3rd, 2013.
"Hollingsworth v. Perry: Truth and Silence" by Cordell Asbenson, April 2nd, 2013.

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