Other conservatives howl that one judge is unjustly invalidating the will of seven million Californians and that gay rights should come to the populace through the ballot box, not the courts.
We conservatives have a well-founded narrative about judges and the courts. It is true that the federal bench is populated with liberals who view their role not as interpreting the law as it is written, but as policy makers empowered to sculpt social outcomes with which they agree.
The irony of this case is that Judge Walker is not a liberal activist judge but one whose career has proven him to be a tempered judge, true to the Reagan-Bush conservative jurisprudence that he was nominated to represent on the bench.
Conservatives cannot deny that our Founders intended the judiciary as an equal and independent branch of government purposed to ensure the protection of every citizen’s rights.
The Supreme Court has previously ruled that the right to marry is a fundamental constitutional right.
When an unpopular minority is denied the right to marry, it is indeed the role of the courts to protect the rights of that minority, especially when a majority would deny them. This is why Judge Walker’s opinion reads, “That the majority of California voters supported Proposition 8 is irrelevant, as fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.”
Not to mention that conservatives have a flawed history with civil rights, a trend that began when Barry Goldwater opposed the Civil Rights Act as unconstitutional. While Goldwater was no racist there is clearly a conservative precedent for a breakdown at the intersection of ideology and reality.
The aforementioned arguments against Judge Walker’s Perry v. Schwarzenegger decision risk undermining legitimate conservative gripes about the judiciary and putting conservatism once again, on the wrong side of the latest chapter in American civil rights.
The potential consequence that conservatives land on the wrong side of civil rights history again is the alienation of an entire generation of voters. With polling definitively indicating that Americans under age 30 overwhelmingly favor gay rights, with a majority supporting gay marriage according to the Pew Millennial Attitudes report published in February this year, there are multiple reasons for conservatives to think carefully before digging in their heels against gay marriage.
Margaret Hoover is a writer, conservative commentator and Fox News contributor.