Yesterday was historic.  Mind-blowingly historic.  As in, I couldn’t write this post yesterday because I spent the whole day just sitting around thinking, “Wow, this is really freaking historic.”  I didn’t recover until today.

And really, whatever your feelings might be toward gay marriage, you have to admit that something really big happened yesterday.  Judge Walker’s decision will, very likely, have ripples all the way up to the U.S. Supreme Court.  This may very well be the beginning of a federal case which will once and for all declare the legality (or illegality) of gay marriage in this country (and let’s face it, the U.S.S.C. ain’t gonna keep their hands off it, not now).  This may very well be the beginning of our generation’s landmark case — our Roe v. Wade, our Brown vs. B. of E., our Dred Scott.  Whichever side you fall on, you have to admit that this country will never, ever be the same.

You’re either excited or terrified right now.

Let’s forget all of that for a second if we can, though.

I’m seeing a lot of the same type of criticism coming from many of my pro-8 friends.  (For clarification, “pro-8″ is the same as “anti-same-sex-marriage” — it’s just a lot easier to type, and I’m going to take advantage of that fact.)

For the sake of fair-and-balancedness, I’ll cite the words of Tim Wildmon, President of the American Family Association, a major supporter of Prop. 8:

“It’s inexcusable for [Judge Walker] to deprive the citizens of California of their right to govern themselves, and cavalierly trash the will of over seven million voters. This case never should even have entered his courtroom.”

Essentially, the argument boils down to this:

America is a democracy.  A democracy is run by the will of the people.  The will of the people dictated that gay marriage is not legal.  Therefore, a federal judge has no right to overturn the will of the people, and America has ceased to be a democracy.  (This argument is often, though not always, served with a heaping helping of “The Founding Fathers are weeping from their perch in Heaven.”)

Again, as I’ve said many times before on this blog, and will say many times again, I don’t care what your political affiliation is.  I don’t care if you believe that same-sex marriage should continue to be illegal in this country (though I might debate you).  All I care about is that you make an intelligent and well-reasoned argument which takes the facts into consideration.  And this argument, my friends, is not well-reasoned.

First things first.  America is not, nor has it ever been, a democracy.  Democracy is a nice word, and it’s a great rallying cry to stand behind.  It motivates people to vote and get involved, because it implies that the people have all the power.  It’s necessary to America’s governmental system that people stay involved and vote, though that isn’t the only mechanism by which the country operates.  Therefore, it’s often useful to refer to America as a democracy, as a motivational device, to make sure that there’s a decent turnout to the polls at even the minor, boring elections.

But pure democracy is a very bad idea.  The majority is not exactly the sharpest crayon in the box on most issues.  The majority has done, said, and thought some remarkably stupid things.  The majority doesn’t have the time, inclination, or attention span to become experts in law, public policy, political theory, and all the other things that go into intelligent and well-informed policy writing.  And nobody knew this better than the writers of the Constitution.

Most people learned in their high school Government class that the U.S. Government has 3 branches of power, and that these 3 branches of power all operate under a system of “checks-and-balances.”  The President is able to check the power of the Congress by power of veto.  The U.S. Supreme Court is able to check the President by evaluating laws which he signs into power and voiding actions which he takes without the ratification of Congress.  The Courts are checked by I-forget-right-now.  (Like I said — busy day yesterday.)  My textbook had a cool little graphic which explained it.

This is not, strictly speaking, accurate.  There are 3 branches of government codified in the Constitution, to be sure, but the U.S. operates with a system of 4 checks-and-balances.  The 4th, of course, being the will of the people.  This is why, for example, the U.S. Supreme Court is appointed and not elected — because the will of the people cannot have absolute sway.  This is also why all laws codified by democratic election are subject to challenge and repeal via the federal courts.

As I mentioned earlier in my list of landmark cases, there is a grand and noble tradition in this country of repealing the will of the people via judicial order.  Were it not for judicial order, public schools and the military would both still be segregated.  Women would be ineligible for the same pay scale and benefits as men.  Non-whites would be ineligible for the same pay scale and benefits as whites, for that matter.  The country would be a far uglier and more unequal place.  Moreover, public opinion still might not have changed.

It is, after all, the typical narrative that the civil rights movement/feminist movement/whatever only gained steam after the group which was being discriminated against won the hearts and minds of the majority, and America spoke as with one voice and declared that we did not want to discriminate any more.  But that’s not the real narrative.  In fact, the courts — and sometimes other branches of the federal government — most often led the way and overturned the will of the people in order to promote the common good.  (See: Brown v. Board of Education (1954), Dred Scott v. Sandford (1857), Executive Order to Integrate the Military (1948).)  Public opinion only began to change after we’d gotten the message from “activist” judges that prejudice was no longer what the cool (and powerful) kids were doing.

Phew.  1k words in and I need to wrap this up.

The point is, judicial review is good — great, in fact.  Our country would not be the wonderful, free, equal place that it is today without the phenomenon of judicial review.  Judicial review has played a major role in turning America into a bastion of freedom, and has inspired not only Americans, but people around the world, to check their preconceptions about what is right and wrong and take a stand for equality.

Again, I don’t care which side of the debate you come down on.  There are plenty of arguments for why America should not legalize same-sex marriage (though after following Perry v. Schwarzenegger et al. for 10 months I’m not so sure that there are many strong ones anymore).

But I do care that people be responsible and informed citizens.  I do care that they know at least the rudiments of how their government works, and that they vote accordingly.  I do care that the public debate put the brakes on this downward spiral into rhetoric and hate that we’ve been following, and start to climb back towards decency and the common welfare.

So please, for the good of the nation: give judicial review the respect it deserves.

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