Whether You Like It Or Not

Debra J. Saunders on our robed masters:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” federal Judge Vaughn Walker wrote. So one judge overturned a measure approved by 52 percent of California voters in 2008 and upheld by the California Supreme Court in a 6-1 ruling.

Some Californians will see this decision as the work of an elitist gay judge imposing his pre-ordained political views on voters. They can point to the fact that Walker issued controversial pretrial rulings on procedural issues that favored the plaintiffs contesting Proposition 8 — only to be overturned on appeal…

…Gay activists are ecstatic, but I don’t think you’ll see [San Francisco] Mayor Gavin Newsom on City Hall’s steps crowing, “It’s going to happen — whether you like it or not,” which is what Newsom said when the California Supreme Court ruled in favor of same-sex marriage in 2008. (To recap, the state’s top court overturned a gay marriage ban in May 2008, but upheld Proposition 8 after voters put it in the state constitution in November.)

“Whether you like it or not.” While Proposition 8 opponents style themselves as champions of tolerance, they’ve chosen judicial fiat over the slower, surer route of persuasion.

Californians want to be sure that tolerance will be a two-way street. Will the courts force people to approve of same-sex marriage in the same fashion that San Francisco Superior Court judges voted to bar judges from taking part in the Boy Scouts because the Boy Scouts barred gays? Will advocates use the schools to promote same-sex marriages with young kids? These aren’t unreasonable questions.

Walker summed up support for Proposition 8 as emanating from “a fear or unarticulated dislike of same-sex couples.” Wrong. Voters have reason to be afraid lest legalizing same-sex marriage result in unintended consequences — such as the legalization of polygamy, as recommended by a Canadian panel commissioned to debunk the same-sex-marriage-legitimizes-polygamy argument…

And Ann Coulter tells us how we got to the point where illegal aliens, aka, “undocumented Americans'” kids born in America get automatic citizenship (it may surprise you):

Democrats act as if the right to run across the border when you’re 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it’s amazing the drafters even considered the amendment’s effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)

Brennan’s authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, the Clement L. Bouve — the one you’ve heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge — just some guy who wrote a book.

So on one hand we have the history, the objective, the author’s intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants…

And Power Line:

Conservatives have long said that the day would come when liberal judges declare the Constitution unconstitutional. That happened today, when a gay federal judge in San Francisco, relying on the opinions of mostly-gay “expert” witnesses, ruled that an amendment to the California constitution, which was adopted in perfectly proper fashion by a substantial majority of voters, is “unconstitutional.” In this context, unconstitutional means “unpopular with me and my friends.”

As a legal matter, Judge Walker’s decision is a bad joke. It will be appealed, of course, but the outcome of the appeal will be determined by politics, not law. I think it is safe to assume that anyone nominated to the Supreme Court by a Democratic President is explicitly or implicitly committed to the proposition that gay marriage is a constitutional right. If you think that is bizarre, stop voting for Democratic politicians.

SCOTT adds: Lest one think that John might be exaggerating, Kathryn Lopez does us the favor of drawing attention to this great thought from Judge Walker’s endless opinion: “Gender no longer forms an essential part of marriage.”

When precisely did “gender” drop out of the equation? Judge Walker puts me in mind of Philip Larkin’s insight:

Sexual intercourse began
In nineteen sixty-three
(which was rather late for me) –
Between the end of the Chatterley ban
And the Beatles’ first LP…

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