Posted on 08/06/2010 8:12:54 AM PDT by TitansAFC
Mormons took a lot of abuse for helping pass Proposition 8 in California, where 52% of voters banned the right of gay couples to marry in 2008. But will anyone thank Jehovah’s Witnesses for their role in getting the law declared unconstitutional?
One of the biggest outcries over Prop 8 was that the fundamental rights of a minority group could be taken away by popular vote — which isn’t supposed to happen in America, land of the free.
Vaughn Walker, the federal judge who struck down Prop 8 this week, boldly said it “was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.” He also minced no words with the electorate: “That the majority of California voters supported Proposition 8 is irrelevant.”
This is where Jehovah’s Witnesses come in. On Page 116 of Judge Walker’s ruling, he cites a 1943 Supreme Court case where the high court did a rare reversal of itself, acknowledging a mistake it made in a Jehovah’s Witness case three years earlier. What happened between 1940 and 1943 to Jehovah’s Witnesses gave Judge Walker in 2010 his most potent precedent to show that voter will does not trump the protection of minority rights.
A villain of that era
In the 1940s, Jehovah’s Witnesses weren’t just unpopular and marginalized. They were seen as criminal and a threat to democracy. It was blasphemous enough that they preached there was no hell or trinity and went knocking on doors to say so. But they also refused to salute the flag or say the Pledge of Allegiance.
Lillian Gobitas was among thousands of Jehovah’s Witness children expelled from public school for not saluting the flag. Her case (Minersville School District v. Gobitis) went to the Supreme Court and a fundamental question was asked: Should a free society force its citizens to engage in patriotic ritual? In 1940, the court said yes. National unity was at stake.
But Jehovah’s Witnesses wouldn’t comply, saying the flag salute is an idolatrous act of worship of a man-made symbol, which is forbidden by God. In response, mobs attacked Jehovah’s Witnesses in 44 states, burned their houses of worship and beat them. First lady Eleanor Roosevelt spoke out against the violence. At the height of World War II, when the U.S. was fighting nationalism in Germany, where Jehovah’s Witnesses were being sent to concentration camps for refusing to do the Nazi salute, the Supreme Court revisited the case (West Virginia State Board of Education v. Barnette). A stunning reversal was announced June 14, 1943 — Flag Day.
In 2010, the value Judge Walker saw in the Jehovah’s Witness case was how Justice Robert Jackson in 1943 addressed the “tyranny of the majority,” a problem that’s been around since at least 1835 when Alexis de Tocqueville first wrote the phrase in his book, Democracy in America.
The 1940 Supreme Court used “national unity” to justify forcing kids to salute the flag. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.
When Justice Jackson got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the “very purpose” of the Bill of Rights was to protect some issues from the volatility of politics and “place them beyond the reach of majorities.”
“One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly,” Jackson said, “may not be submitted to vote.”
Rights trump elections
Judge Walker used Jackson’s line in striking down the 52% majority vote that had taken away the fundamental right of gay and lesbian couples to marry in California.
While we can thank Jehovah’s Witnesses for this precedent that aims to prevent tyranny of the majority, it should be noted they don’t like gay marriage. They consider it sin and aren’t afraid to say so. But not one devoted Jehovah’s Witness voted for or supported Prop 8. Jehovah’s Witnesses are apolitical. Rather than forcing their beliefs through legislation, they prefer to find converts by sharing a message.
Justice Jackson saw how protecting the rights of an unpopular religion demonstrated the beauty and full potential of the Bill of Rights for every unpopular group to follow.
“Fundamental rights,” Jackson wrote in 1943 and Judge Walker quoted in 2010, “depend on the outcome of no elections.”
:-)
Also posted by USA today, but can't link it!
homosexuality is not a religion.
“Judge” Walker (if anyone still respects the courts) stated homosexuality was an immutible behavior. Homosexuality is not a matter of conscience.
jehovas witnesses were recruiting to their faith.
is judge walker now endorsing recruiting children to a sexual behaivor?
A weak decision written by a weak man. (of course he is friends at the same club as all the other lawyers in the case)
Using that logic, anything goes, polygamy, incestuous marriage, bestial marriage, whatever. The Judge is an idiot.
Hope you don’t OD on the lime jello..... LOL
Correct.
Religion is a protected class. Orientation is not.
Next useless analysis please!
Now we have the tyranny of the minority.
If something is so “fundamental” you would have thought it would have been discovered long before now.
He’s a liberal gay activist judge. What did people expect. The good news is the case is so full of crap logic that the 9th may have to reverse in order to keep their own judicial appearance from looking as bad. SCOTUS will affirm voters 5-4.
Death Race 2000
Minority rule and blood games.
Yep, by the judge’s logic, so long as you can show that your abhorrent perversion is practiced only by a small minority of Americans, you now have a right to practice it. Pederasty will be the next “right” invented by the left wing deviants.
Another half-truth exposed.
I like JW's and have had some as friends. I think their religion is way off base on certain points and probably closer to Biblical Christianity than mainstream sects on other points, an unequivocal stance against homosexuality being one of them.
As a rule, they don't vote. Neither do most of the Amish here in Pennsylvania. But I can guarantee you that a lot of them were praying on behalf of Prop. 8.
I know this because I've had civil discussions with several of their missionaries. If I happen to have time when they stop by, I'll give them the courtesy of a few minutes of my time. Their refusal to salute the American flag is based on a sincere religious belief, albeit one I believe to be sincerely wrong. The left's refusal is based on a hated of our country. Huge difference.
if the opinion is the right result for the wrong reasons the appeals court will affirm. that is true in any case.
Oh nice. So a religious group who doesn’t believe in honoring the nation by saying the Pledge of Allegiance will nonetheless involve themselves in the American political process in this way? They won’t even vote, if I remember correctly.
As I understand the article, the JWs aren't "getting involved" in this issue. A court decision from years back involving them is being used to justify individual rights in this case.
JWs are also the only people that I could not sell encyclopedias to.
Why is that?
They were not in need of books or television or information outside of their JW cult information.
Where do you draw the line on protecting deviant behavior? Could a pedophile not make that same argument? Do consenting adults have the right to practice polygamy? I am not a JW, and there is a part of me that wishes that all cults, including Mormons, were criminalized, but if the state started to determine which religious groups should be allowed and which ones should be criminalized, it would open the door for the state to criminalize all religious communities that did not support the state’s politics. When the state starts to determine which behaviors are protected because such behaviors are thought to be by nature and not by choice, like a genetic disease, and that those genetic behaviors constitute a protected class, we are in deep sh*t.
Some people think the Amish are sheltered as well, but they are actually quite aware of what's going on in the world. They do a lot of reading, not everything put out by themselves.
I don’t know if this still applies, but decades ago, I used to ask JWs where their bible, or bibles were, most of the time they would start pulling out their JW books and I would have to explain that I meant only the actual bible, not books about it.
Sometimes they didn’t have, or at least could not locate their bible.
One suspects this decision was written long before the case ever was presented to his court.
As it is now being written in the 9th Circuit, and will be ready even before that Circus grants the appeal.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.