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Judge missed the compelling state purpose

By Staff | Aug 13, 2010

In 2004, 73 percent of the voters of North Dakota approved a constitutional amendment that not only defined marriage as a union between a man and a woman but it also declared that nothing else would do.

The status of this provision has now been put in question by a decision in a federal court in California.

U.S. District Judge Vaughn Walker overturned a similar provision in California’s constitution, generating an outburst of unChristian rhetoric, much of it demonizing Walker and impugning the judicial system. While Walker was vilified as being an arrogant rogue, the most serious charge was that he was an activist judge. (To be honest about our definitions, activist judges are judges who make decisions we don’t like.)

We have had activist judges since Chief Justice John Marshall out-snookered President Thomas Jefferson in the 1803 Marbury vs. Madison case. Marshall was followed by a long parade of judges who could be labeled as activists because activism is the very nature of judicial interpretation.

Because many Christians are under the false impression that this is a Christian country, we expect that Scriptural arguments should prevail in public debate. The truth is that we are a secular society with a secular judiciary making secular decisions based on secular arguments.

We can quote Scripture to each other but it doesn’tplay in secular courts.

Critics claim that the California decision was illegitimate because it set aside a provision of the state constitution that had been approved by a vote of the people. They argue that “unelected judges” have no right to overturn the decisions of the voters in a democracy. This line of reasoning has no credibility under our Constitution.

Rights are guaranteed, regardless of public opinion. The Bill of Rights was added to the Constitution to protect minorities.If a vote of the people could have overridden minority rights, the United States would have become a society without rights long ago.

Arguing the same-sex case from a secular point of view, I would claim that Judge Walker came to the wrong conclusion. Even though it is true that constitutional rights are fairly absolute, they can be abridged if there is a compelling state reason for doing so. For example, a Supreme Court justice once said that the right of free speech doesn’t entitle one to shout “fire” in a crowded theater. The compelling state reason here is a safety of the public.

Judge Walker claimed that the Equal Protection clause of the Fourteenth Amendment embodied the right of same-sex marriage. He then went far afield with a number of unfounded suppositions and conclusions without recognizing any compelling state purpose for protecting the benefits of traditional marriage.

Ultimately, his opinion will be reversed in the appellate process. If not, the courts will find themselves trying to distinguish between the arguments for same-sex marriages and those claiming a Fourteenth Amendment right to bigamy, polygamy or communal marriages. They will foresee the quagmire and will find Judge Walker’s decision unsustainable.

Omdahl is a UND professor emeritus in political science and a former lieutenant governor of North Dakota.

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