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Do votes count at all in the United States? Can the public vote for what defines their institutions, or can any old judge differ in opinions and set the voters right by denying what they voted for? In terms of gay rights, Judge Harry Pregerson has undone the votes of Oregon and the country by claiming that same-sex marriages, even though not legal at the State level (or Federal) in Oregon, is discrimination, and that the partners should be treated as if legally married. Quite enlightened. But if he can do that, why have the vote in the first place? Why not let enlightened judges make our policies?
Alison Clark, an assistant federal public defender, and her wife, Anna Campbell, made a case against the Administrative Office of the U.S. Courts for being denied spousal health benefits. They were married in British Columbia. However, Oregon voters voted for a constitutional amendment in 2004 that defines marriage as a union between man and woman, which doubles the federal Defense of Marriage Act (DOMA), which also bans gay marriage. Whether or not this is fair or should have been voted in is one thing; after all, that’s why we vote in the first place, to come to a consensus.
But not according to Judge Harry Pregerson, who says that the homosexuals were discriminated against.
As he posted on Oregon Public Broadcasting’s website, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB [Federal Employee Health Care Benefits] program was that, as a homosexual, she had a same-sex spouse. Therefore, the denial of Clark’s request for spousal FEHB benefits was based on Clark’s sexual orientation, and thus violates the plan’s prohibition of discrimination on the basis of sexual orientation.”
If Oregon’s Measure 36 and DOMA were by nature unconstitutional, then perhaps they should be repealed, rather than undermined by enlightened judges? As the judge said, Measure 36 “does not pass constitutional muster” and neither does DOMA.
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“I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” Pregerson wrote. He therefore ordered that Clark’s benefits be allowed “without regard to (1) the sex of the listed spouse and (2) whether a validly executed same-sex marriage is recognized by the state.”
If we can agree that it would have better that Measure 36 and DOMA didn’t pass, are we really going to undermine the democratic process in the name of justice? Whose justice?
