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Opinion: Ultimate Battle For Gay Marriage Supporters: Their Fellow Americans

Publication Date: 
August 09, 2010
The Christian Science Monitor
Jeff Amestoy

Dean Larry Kramer is quoted from his book, "The People Themselves: Popular Constitutionalism and Judicial Review," in this article on California's Proposition 8 trial. Jeff Amestoy of the Christian Science Monitor reports:

The public reaction to a federal judge’s decision declaring California’s prohibition of same-sex marriages unconstitutional has again demonstrated that Americans have deeply held and divergent views about gay marriage. The closely reasoned and factually robust opinion of US District Court Judge Vaughn Walker may well be the vehicle that compels the United States Supreme Court to determine what is meant by the “right to marry.” It is a question state supreme courts have grappled with for nearly two decades. But it is not a question for judges only.

The most intriguing aspect of Judge Walker’s thorough and cogent 135 page opinion is his assertion that the support of California voters for Proposition 8 limiting marriage to opposite-sex couples is “irrelevant, as fundamental rights may not be submitted to a vote; they depend on the outcome of no election.”


“I never heard of an appeal being taken from the Supreme Court” said Stephen Douglas in defending the Court’s infamous 1857 Dred Scott decision that held slaves to be private property, prompting Abraham Lincoln to reply that the Court does not issue Holy Writ. The pre-eminent progressive legal scholar, Larry Kramer, is even more direct in “The People Themselves: Popular Constitutionalism and Judicial Review”: “The Supreme Court is our servant and not our master...a servant who is ultimately supposed to yield to our judgment about what the Constitution means and not the reverse.”