THE PROPOSITION 8 RULING

The reaction to Judge Vaughn Walker's ruling from opponents of same-sex marriage was swift, angry and predictable. How dare, they ask, could the opinion of one judge invalidate the votes of the 7 million Californians who supported Proposition 8? On Fox News, Sarah Palin expressed frustration at "that third branch of government undoing the will of the people." Similar sentiments reverberated from conservatives in the blogosphere, cable news and talk radio.

Reasonable people may disagree about whether Walker's 136-page ruling made the case that Proposition 8 was unconstitutional because it lacked "any rational basis" for singling out gays and lesbians for denial of marriage licenses. But there should be no argument about the authority - indeed, the responsibility - of the federal judiciary to assess the constitutionality of a law.

This is exactly how our constitutional democracy is supposed to work.

Don't blame federal judges for doing their jobs. The concept of judicial review has been at the core of our checks-and-balances democracy since the landmark Marbury vs. Madison ruling in 1803.

"It's the nature of our constitutional system," said Erwin Chemerinsky, dean of the UC Irvine law school. "It doesn't matter whether a law was passed by Congress, a state legislature, a city council or the voters - it has to comply with the U.S. Constitution."

In reading Walker's opinion, which carefully and quite compellingly dissected the arguments of each side, it is apparent that a judge known for his diligence went to great lengths to put it on display in this case.

Still, some critics of the ruling saw fit to note that Walker is gay, with the insinuation of an inherent bias. Many of those conservative commentators neglected to add that Walker was originally appointed to the federal bench by President Ronald Reagan, and renominated by President George H.W. Bush in 1989.

"This is by no means a renegade decision," said Jesse Choper, a constitutional law professor at the UC Berkeley School of Law.

Nor is it the last word. The oft-echoed argument that "one judge" has somehow thwarted the will of the people is a "rhetorical flourish" that does not hold up to scrutiny, Chemerinsky said.

"This ultimately will go to three judges (on the appellate level) for review, and then to nine justices on the U.S. Supreme Court," he said.

Chemerinsky added that many of the conservatives railing about judicial excess in the marriage case were not complaining when the federal courts struck down a Seattle law on the consideration of race in school assignments or Chicago's ban on handgun ownership.

Walker's ruling was based in large part on the U.S. Constitution's guarantee of equal protection. Proponents of Prop. 8 failed to support their claim that same-sex marriages undermine the institution of marriage or are harmful to children, he asserted. "Moral disapproval" of homosexuality is not a sufficient basis for such discrimination, he wrote.

As for the other complaint about the ruling - that judges should not force social change on a culture that is not ready for it - remember: It was the federal judiciary, invoking the Constitution, that desegregated schools and ended bans on interracial marriage. Discomfort with a minority group, whether based on skin color or sexual orientation, does not justify the denial of basic rights.

And marriage has been determined to be a fundamental right in this nation.

In 1978, the U.S. Supreme Court struck down a Wisconsin law that denied marriage licenses to noncustodial parents who were behind in child-support payments. In that case, unlike same-sex marriage, Wisconsin could plausibly claim it had a vested interest in denying a marriage license to a particular class of individuals - because the child of a deadbeat parent about to enter a new marriage could be at heightened risk of becoming dependent on the state.

Also, as Choper noted, the Wisconsin residents precluded from marriage under that law had a straightforward way to get around the prohibition - "pay their darn child support."

In the case of two people of the same sex who want to marry, "there is no way on God's Earth they can get around" the Prop. 8 exclusion, Choper said.

Yet even with Wisconsin's legitimate interest in keeping deadbeat parents from marrying, the Supreme Court found the law unconstitutional because it "interferes with a fundamental right."

In our system of democracy, no ballot measure - even one that passed by a margin of 600,000 votes, as Prop. 8 did - should be inviolate from the reach of the judiciary.

"This is tyranny," roared talk-radio blowhard Rush Limbaugh, suggesting the judiciary had been overtaken by "leftist nut jobs." Limbaugh made a point of noting Walker's sexual orientation - but not the fact that he was selected for the bench by Reagan and Bush.

Tyranny? I would be more worried about a democracy that did not protect fundamental rights from the "tyranny of the majority" that James Madison warned of in the Federalist Papers.

As of today, deadbeat parents who want to marry enjoy a constitutional protection that is denied same-sex couples who want to build a family with all the rights and responsibilities of marriage. Walker's ruling was an essential step toward rectifying that injustice.

John Diaz is The Chronicle's editorial page editor. E-mail: jdiaz@sfchronicle.com.

This article appeared on page E - 2 of the San Francisco Chronicle