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Thursday, August 05, 2010

Proposition 8, states rights, and the end of jury nullification

Two things that trouble me about California's Proposition 8 - the "gay marriage" ban - being struck down yesterday by Chief U.S. District Judge Vaughn Walker...

The first is that a single member of the federal judiciary is empowered to render null and void the vote of more than 7 million voters in a matter pertaining to their own state of residence.

The other thing is that even as this is being cheered in some quarters as a "victory" for certain individuals, in truth it is a dire setback for all individuals. I speak of the now decades-long erosion of jury nullification: the tradition that common people empaneled on a jury can acquit defendants and even overturn legislation in spite of legal and prosecutorial weight, if sincere conscience should so dictate. And even though jury nullification is generally a matter strictly relegated to affairs at trial, its principle extends throughout the whole of the law of our democratically-elected republic.

Jury nullification is something that I have long appreciated. It is - and should always be - the citizenry's last, best bulwark for peaceable resistance against any and all agents of government overstepping the rightful bounds. The moment that government refuses to honor this, then it begins to be questioned whether government is obligated to acknowledge and respect the rights of the people... or whether the people are obligated to acknowledge the government in kind.

The people of California voted overwhelmingly for Proposition 8, and whether the rest of us agree with it or not we should respect the people of California to manage their own affairs as a state.

And one judge, sitting on the federal bench and regardless of agenda, should never be enabled with the power to negate the legislative will of citizens in good conscience. For that way, lies tyranny.


Marco van Bergen said...

Government and Federal Judges are there because not all men are good. There are evil men out there too who need to be "corrected" when they do wrong things, like real criminals. But if "the people" decide to do something like proposition 8, which is basically there to discriminate certain individuals (doesn't your constitution say that "all men are created equal"?) then there has to be a higher power, a kind of watchdog who corrects these individuals and makes sure that they follow the constitution. In my opinion, the fact that proposition 8 got struck down is a step forward to an America where not only black people enjoy the same rights as whites, but also gays and lesbians; so a step forward to a truly free and equal america, which, I think, is more important than jury nullification. Because jury's don't had law education and in my opinion (the european view) that is VERY necessary when you want to decide about good or evil.

Chris Knight said...

This country however has a HORRIBLE history of using the judiciary to legislate things like social change and morality. And I say that in the sense that there is no one particular group or faction or "ideology" to blame: EVERYONE has at one time or another attempted it, with varying degrees of success (if that can be called "success").

It's like the abortion issue. Something which I am very much against. But I also believe that it's something which *should* be decided upon by the individual states, and *not* the Supreme Court. Roe v. Wade opened up a whole can of legal problems and now, more than 35 years later even abortion supporters are among the first to agree that it was a bad decision.

And then there is the matter of slavery. Which there can be made a very good case that the federal government tried too hard and too fast to make the southern states abolish it immediately instead of letting things run their natural course. Slavery was *not* going to last forever. It was a horribly *losing* economic proposition, and everyone in the South knew it. But in some ways they were saddled with leftover problems that the Founding Fathers - showing how even they were only all too human - failed to adequately address. I've no doubt that left to themselves that *every* state would have abolished slavery by way of their respective legislatures, at worst within 20 years and at best... perhaps within less than 5, at the time the Civil War broke out.

It's *not* an overnight process. I don't know if it should be either. It's one thing to force a person to do something. It's quite another... and far more lasting... to *persuade* a person.

That's what Ghandi did. Took him *decades*. And he had to suffer quite a bit for it. But in the end, his people were free. That's how it's done: by winning hearts.

By the way Marco, I've been wearing that Team Netherlands World Cup shirt quite a bit since you gave it to me last week. I've gotten quite a few good comments about it :-)

Anonymous said...

Justice Vaughn is one of only two federal judges who is openly gay.

Also, he was an H. W. Bush appointee who, as a lawyer, argued against homosexual athletes who wanted to hold a gay Olympics in San Fran.


If a Hollywood screenwriter pitched the justice's life story as bio pic, it would be shot down as too unbelievable.

jessicaash@aol.com said...

The simple fact that is forgotten is, if this judge had ruled in favor of Proposition 8, he would have been hailed as a hero by the same people who vilify him now, and rant about "activist" judges. Sounds like a double standard to me.

Marco van Bergen said...

I understand your view on this, Chris.

But I think that it's just inhuman and unfair to deny certain groups of people the right to legally unite them in a marriage because "scripture says so". Because in the end, that's what the California-thing was all about. Prop 8 came there mostly because of religious groups.
Which is wrong. All wrong. That is why the people should only elect officials who make laws, instead of making laws themselves.

I mean, if you have a book that says it is "not good" if two women marry each other, then how much value can you extend to that book by making a law that prohibits two women to marry?
Just because you believe in the fact that that's all wrong?
Well what if the two women had a book that says that a man and a women who marry is all wrong. And they'd make a law about that.
Well I want to see the people with the book that sez that two women who marry is all wrong go nuts.
They'd start yelling that it is discrimination and that it contradicts freedom of God.

And THAT is why the people can NOT have direct power: religion.
State and church should be, at ALL times, be separated. And it's sad to see that fanatic religious followers generally are incapable of that. Because, you know, they can run around with their books saying that "the book" sez it is just "all wrong".
Well, what is all wrong is the fact that they try to shove that book down everyone's throat by making laws based on it. I mean, "gays" and "lesbians" (hate to stereotype em as that) don't shove their "beliefs" down the throats of the people, right?

And for me it IS an overnight process. Why should people who deny other people the same rights as they have, get the time to adjust to the change? Just let them be horrified by seeing gays and lesbians getting married! "oh no! That is all wrong!" I can hear them say it already. And then they'll be weeping, crying, praying to their Lord to give them guidance or something else, which is all very well in my opinion, you know, freedom of religion, so I'm fine with that.

Ok, point here is that people who discriminate should not be able to decide. People's religious motifs should be left out in politics and all men and women should be able to marry ANY partner of their choice. So, yeah. I was very happy when I read that prop. 8 went down :)

Anonymous said...

Everyone bases their ideas of "wrong and right" on something.

What you seem to be advocating here is that those people who base their ideas of wrong and right on some sort of secular humanistic philosophy get to have a louder voice than those who get their ideas of wrong and right from a religion.

The beauty of a republic like ours, is that everyone gets a voice. This includes the homosexual who wants to argue in favor of marriage for all - and the person who wants to argue the opposite.

By the way, what happens when a man and three women want to get married? Should we deny them to the right to legally unite?