Should a judge be able to overrule a decision by voters?

The federal judge who overturned a same-sex marriage ban approved by California voters ruled that gays and lesbians have a constitutional right to marry. Today’s Question: Should a judge be able to overrule a decision by voters?

  • Isaac Kaufman

    Yes, when it comes to equal protection under the law. Equal protection can’t be turned on and off based on the whims of voters. If it could, then there might still be some states where people of different races weren’t allowed to marry.

  • Dianne

    Yes, that is the way our system of government works.

  • Alison

    Absolutely! The most important reason for a judge to overrule a decison by voters is to protect the rights of a minority. While America is a great nation, there have been numerous instances where a legal majority of voters have wrongly chosen to deny rights to a group of citizens that are guaranteed by the Constitution and Bill of RIghts.

  • Keith

    The reason that we have guaranteed rights in a democracy in the first place is to protect the liberties of minorities against the tyranny of majority opinion. If judges couldn’t overrule the voters, how long do you think any of our rights would last in the face of public anger or frustration?

  • Gina

    Yes! Review by judges ensures our rights are protected and the constitution is upheld. It also protects against discrimination. Public opinion is not always right and just.

  • Anachronon

    The United States is a Constitutional Democracy. This prevents populist opinion, sentiment, prejudice or bigotry from being implemented as law that is contrary to the constitutional framework that applies.

    As Dianne said, that’s the way it works. The people cannot “break” the Constitution just because they feel like it. And judges make sure that the Constitution is not “broken”.

  • Mesfn

    The people have voted!! all Blacks should be banned from being elected to Congress. The people have voted!! Jews should be deported to Poland. Judges have no mandate to question the Voters right. What a silly question. Just goes to show how shallow MPR. is even to entertain the idea.


  • Patrick

    Yes, a judge should be allowed to over-rule a decision by voters if it is a constitutional matter. Would we allow the results of a referendum to decide with which religion we can affiliate or whether we sould have freedom of the press? A public vote should not be allowed to determine who is afforded the rights guarenteed by the constition and who is not.

  • Fessha

    It is because we have constitutions that we have votes.

  • Darla

    Yes, of course.

    People tend to vote their bias or self interest. It is the Courts in general and Judges in particular who are left to make sure the weak are not trod upon and that their rights are truely equal. This is the system which we live in.

  • Amy

    Absolutely, especially in matters when constitutionality is in question.

  • Steve

    I think the people should have the right to make decisions in a true democracy. For a judge to overrule a voters decision doesnt help a democracy. We need to have people speak and be counted and implemented in action!

  • bsimon

    Of course judges should be able to overrule voters. Just like judges are able to overrule misguided legislators and misguided exectuvies. Some judges can override other judges, with the Supreme Court getting the final say. If we, as voters, don’t like the rules by which the SCOTUS makes it’s rulings, there is a process defined for changing those rules.

  • Max

    The fact that this question was even asked displays the bias against homosexuals. If this vote was about resegregating schools it wouldn’t even be an issue.

    Furthermore, the decision was put before the public by the legislature. The decision could just as easily be taken away by the legislature and no one would even question it.

    This is a baited question calculated to get certain people to rant about “activist” judges.

  • bsimon

    steve writes

    “I think the people should have the right to make decisions in a true democracy. For a judge to overrule a voters decision doesnt help a democracy.”

    We’re not a democracy, we’re a representative republic. However, your point underscores the real problem in California – excessive use of ballot initiatives, which creates a hodgepodge of laws that can’t be undone. Sadly, we’re going down that road here, with misguided attempts to fund special programs through constitutional amendments. That is shortsighted policy. As voters we should be holding legislators accountable for not properly representing us, rather than circumventing them by budgetting via ballot initiative/constitutional amendment.

  • Jerry

    The question in the first place should have been:

    “should the right of a minority group, enjoyed by the majority, be put up for a vote in the first place?”

  • Sue

    It should never have had to happen, as this basic right should never have been put to a vote in the first place. But the vote having happened, this is the role of the courts. To protect the minority

  • Josh Wise

    In an era where a significant amount of the population believes the proven untruth about the president’s birthplace, it is more important than ever that we have an independent body who evaluates and determines the law based on fact and not on a marketing campaign!

  • Sam

    Naturally. All of the other points I’ve read in (some) of the comments are great, and to add I’d like to point out that if all voters were exceptional students of the Constitution it would be a different story. However, we are not. As a result, a judge is probably a good thing to have look over various decisions!

  • Jennifer

    Yes, absolutely. This is a legal question, not a popularity contest for voters to decide.

  • John

    Yes, a judge should be able to overrule a decision by voters, but that judge should be extremely reluctant to do so. I am uncomfortable with the California ruling, though I support gay marriage, and would have voted against Prop 8. One of the purposes of the ballot box — perhaps the main purpose — is to give people an opportunity to express their will peacefully. When it appears to people that this opportunity might easily be nullified by an unelected judge, there is danger that our social framework, already frayed, might tear apart. I want to be wrong in my fear; I want this case to be a catalyst for a more compassionate view of people with same-sex orientation. But in my view the danger remains.

  • Greg

    Seems to me that is what the judiciary is set up to decide. If the majority of people can set the laws without an outside review, we would still have separate but equal, which we all know wasn’t equal, or right.

  • Tom

    Yes! This is the exact intent of the Founders in the Constitution! Our Founders were very familiar with the classical history of Greece and Rome. They knew about the “tyrants” who subverted Athenian democracy through “demagoguery” — the “masses” or “mob” were willing to give up democracy (or, in the case of Julius Caesar, the Republic) for their popular leader.

    The Founders foresaw the oppression of minorities, as well as the popular willingness to accept the erosion of our democratic republic, and thus set up the three parts of the government to prevent this (judiciary, executive and legislative).

    Don’t forget: Hitler was elected!!

  • Karl

    Yes. The real question is whether people should be allowed to vote on the rights granted to minorities?! To that I say no, it should have never even gone on the ballot.

  • Brock

    Of course! It is the very purpose of having a Constitution – certain things are set above the whim of the populace. It seems some people will never be comfortable with the fact that the United States is not, and has never been, a “pure democracy.” Nevertheless, it is not, and the voice of the people is, at times, overruled.

  • William Beeman

    The California ruling is extremely clear. Voters can not abrogate “basic rights” through a popular vote. There is ample precedent in law, and the ruling establishes the right to marry as a basic right, clearly established in law by the rulings that struck down misogyny. I was stunned by the cogency, simplicity and obvious correctness of this ruling. The defendants made fools of themselves trying to defend the Proposition–and exposed the fact that they had sold voters a huge pack of lies. No wonder they didn’t want it televised! If this ruling goes to the Supreme Court and is overturned, we will know for sure that the Court is hopelessly ideologically biased. A Supreme Court decision overturning this ruling will live in infamy–a modern Dred Scott decision.

  • Jake

    Yes. The American legal and civil societies are able to exist and function properly only when the competing values of equality, liberty, and democracy are balanced. If and when one of these values takes on too much power our society begins to suffer. It has become the role of the courts to ensure this balance is kept.

    The founders understood that a tyrannical majority was still tyrannical despite popular support. “If a majority be united by a common interest, the rights on the minority will be insecure” (Federalist No. 51).

  • Lalas

    It is the job of the courts to protect the minority from the tyranny of the majority (in this case, the “idiot majority”).

  • Peter T

    Yes, judges should have the right to overrule a rule by voters if it clearly contradicts superior law, like the US constitution. To give judges, however, the right to create law, like the right to privacy, and to put that law also above the voters’ will, corresponds to a an undemocratic power grab by the judiciary, how educated and enlightened that may seem at first.

    To the case in point: It will surely go to the US Supreme Court, as it should. I personally think that a redefinition of marriage to include same-sex relations is not a constitutional right but new-speak. The supreme court justices might tell me otherwise.

  • Steve the Cynic

    Anyone who answers “no” to this question either wasn’t paying attention in high school civics, or else graduated under NCLB rules that made the teachers teach to the test instead of teaching important things.

  • Jacob

    Of course! The masses are asses and often need peole smarter than them to tell them they’re asses. Just because ‘we the people’ want something, doesn’t mean it’s legal, fair, or ‘for the greater good.’

  • Clark

    Though I agree with the majority on this question that judges should have the right to overturn voters and legislatures decisions, it will be interesting to hear from the far left when obamcare is ruled unconstitutional. I would suspect the idiot far left will then be blasting away at whatever judge overrules obamacare.

  • Khatti

    I would like everyone to can the applause for a few moments and remember that you may need those voters sometime in the future.

    Like school busing in the Seventies and Eighties, this is a decision that tells far too large a group of the population that the government is not their friend. It is only rational not to support people who are not your friend. The Health Care bill is in continual jeopardy because too many of the people it would help have unrelated bones to pick with the federal government. Depending on people to vote their economic self-interest hasn’t worked all that well. The Democrats are permanently estranged from working class America do to decisions like this one. I don’t like it—but that’s the way it is.

    David Brooks stated recently that perhaps twenty percent of the population can be defined as liberal. Nprs are probably a fraction of that twenty percent. For those of you who are English majors that means you are a minority. If, somehow, you were to grab the reins of power you would be an oligarchy. But you are not going to be grabbing the reins of power. Which means that, much of the time, you are going to have to depend on people you take so much joy in alienating.

    Good luck.

  • Preston

    Unfortunately, most people do not possess the time or the effort to go through an entire court process, where they are able to hear all sides of an argument, and then consider it for a period of time the way a judge is. “The People” have made plenty of decisions that were later repealed or regretted. Slavery, McCarthyism, Japanese American Internment, just to name a few.

    When the opposition to a movement is driven by fear (homophobia) instead of intellectual and logical reasoning, then I see a problem. A judge’s job is to treat issues the way most people can’t. And he has the resources to do that as well. So yes, I do believe a Judge should be able to overturn a decision made by the people.

  • Terence

    The question is adequately answered in the answers below.

    So what’s to be said about a patronizing candidate for high office who’ll remind us the American / Californian, etc. voter is not dumb?

  • Tammy

    Of course a judge can overrule a decision by voters–and thank goodness. Moral preferences cannot be the basis for law in a democracy founded in individual freedom. If voter preference had the last say, our schools might still be segregated, for example.

  • Sarah

    Yes, a judge’s job is to study and understand our laws and constitution – then make decisions based on reason free from emotion. The voting public makes decisions based on emotion or at best much less study of law & constitution. Our Founding Fathers set it up this way so our Constitution would endure through cultural fads.

  • Michelle

    Yes. The same-sex marriage argument is based largely on religious view versus constitutional rights. The law is supposed to separate church and state. When the public fails to do this then it is the duty of law to step in and make the correction.

  • CC&H

    Steve The Cynic – Honestly! Will you marry me?

  • Elizabeth T


    Judicial branch is to interpret the law. Legislature is to create law. The People elect the legislators.

    In some circumstances, the people also get to directly create/modify the law. If this is controversial (e.g. racial segregation), it goes over to the Judicial branch to review the situation in the context of all of the applicable law. This is a cyclical system.

    This all revolves around what the Judiciary considers a “constitutional issue”.

  • Meagan

    If the voters can’t make ethical decisions on their own, the court should be allowed to overrule them. The basic human rights of a group should not be decided by voters who put their religious or personal convictions ahead of equality.

  • Chad

    Why shouldn’t judges be able to overturn ballot initiatives? We don’t even determine presidential elections by majority vote, and judges have the power to tinker with the judgment of the majority when the results are close. Who remembers Bush v. Gore? Anyone?

  • James

    Stop the boat at the next island… I want off.


  • AKB

    Yes, whenever the referendum results are not compatible with the original meaning of the U.S. Constitution or any of its amendments. Does the actual text of the 14th Amendment to the U.S. Constitution, as read by a reasonable and educated American of 1865, invalidate the marriage laws of 45 states in 2010?

  • Mike Hicks

    Absolutely. It’s not uncommon that members of our society overlook our society’s dark and dirty history of slavery, and that what we consider as cultural norms now were did not exist in the past. The right to an education, the right to vote, and the right to marry each regardless of the color of one’s skin was all decided within the courts. Given an opportunity for the majority, at the time, to vote on those issues would more than likely resort in a much different outcome. Humans really are creatures of habits, and that in itself is not necessarily a bad thing. However, in cases where groups of people are fighting a change to certain cultural norms either for the sake of “that’s how it’s always been”, or “it’s written here in some 2000 year-old book” are simply perpetuating, in some cases, the acceptance of the unethical treatment of other members within society out of fear that the benefits to themselves by these norms will be diminished.

    Now apply this to the marriage restrictions for homosexuals…

  • CarolinEly

    Of course!

  • Michelle

    Just because people vote for something doesn’t mean it’s constitutional. So any judge most definitely should be able to overrule a decision made by voters.

  • Mysti

    Absolutely. There are many discriminatory and unconstitutional policies that I could imagine being passed by popular vote if put on a ballot. Just because there is a consensus of opinion on a certain issue, in a certain area/region/city/neighborhood doesn’t mean its right or constitutional.

  • Kirk D. Van Dorn

    Obviously yes, otherwise we would still have segregated lunch counters, bathrooms, bus seats and schools just to name a few things…

  • Stephen

    Are you trying to find out how uneducated your listener base is? Anyone who answers “no” does not understand that they live in a constitutional democracy. The voters can not take away my freedom of speech or freedom of religion or any number of other very important freedoms. That’s what this judge has said. The voters’ “decision” was unconstitutional and any judge can decide so — that’s how a constitutional democracy works. Now we have two levels of appeal to determine if he is correct, but there is never any question but that he had the power to make the ruling.

  • Erik Hatlestad

    Our Constitution was made to defend us from our most difficult enemy: ourselves. Of course a court can overrule a referendum if it runs contrary to the very fabric of our country. Banning gay marriage not only takes away rights from citizens it also stops the free practice of marriage (think of all the churches that do marry gays). Since the Supreme Court overstepped its boundaries in Bush v. Gore they should have no problem acting on their own precedent.

  • Michael

    Legislatures often create unconstitutional laws that are eventually overturned by a judicial authority. Why should voter ballot measures be considered infallible? Basic human rights are not and have never been subject to majority rule.

  • Greg Toltzman

    I take issue with the question itself. The wording suggests that Judges make decisions in a vacuum. Judges make decisions based on laws and the constitution. The constitution was approved by voters, laws were approved by officials elected by voters.

  • Blake

    To a Christian, the Bible is the highest law, and so when an issue arises, the question becomes “What does the Bible say?”

    However, the United States is not a theocracy, so to an American, the constitution is the highest law. Naturally, the question therefore becomes “What does the Constitution say?”

    Regardless of the issue, Article III of the Constitution says this:

    “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;”

    So, Judaical Branch does indeed have the power to judge the laws of this country.

    In this country, the right to vote comes with the right to be found wrong. Those who can not tolerate law of the United States Constitution may wish to try to exercise their right to vote elsewhere.

  • DH

    Absolutely, I agree with so many people’s comments here. You can get a lot of cruel, inhumane, and ridiculous things to pass via popular vote. Our Judicial system protects us from fear, prejudice, and zealotry.

  • John Christensen.

    The judiciary is a part of the balance of powers. The founders didn’t make this a direct democracy for they saw the people as suseptible to their emotions and therefore offered the legislature, judiciary and executive to check the people’s elective power.Historically judicial review has, in the twentieth century, broadened individual rights.This has frequently occured in the face of inaction by legislatures state and national.


    The question is interesting but does not address the basic issue. Under the 14th amendment, we the people don’t get to vote on fundamental rights of the people.

    Any conservative constitutional scholar would agree.

    In his ruling, the judge pointed that out. The very presence of Prop 8 on the ballot was unconstitutional.

    So, in order to preserve the “sanctity of marriage” between a man and a woman, we’ll have to have a constitutional amendment, repealing the 14th and allowing we in the majority to trample minority rights.

    Now, some of you may think this would be fine, but pause and consider all of YOUR minority views. Maybe we’ll come looking for you first.

  • Audrey Ferrey

    Seems to me this question is about ten years too late. Remember the election of 2000?

  • Marilyn

    This has become a question only because judges have begun to legislate from the bench. Indeed, some law schools, such as the University of California-Irvine, are teaching their students that it is proper for judges to legislate. Judge Walker’s decision will go to the 9th District court of Appeals that will, no doubt, side with him based on past liberal decisions. The Supreme Court will then make the final ruling. I hope and believe this highest court in the land will uphold the over 2000 year definition of marriage.

  • Steve

    Judges need to rule on issues and override voters when voters vote to ignore the constitution. Otherwise, we have the tyranny of the majority. It would not be far fetched to assume the citizens would not have voted in favor of the Civil Rights Act among other laws. This is just the process of checks and balances at play.

  • Mary

    Yes it’s their job. The problem is not what the voters want and vote for, it’s how the bill is written. If the bill is written so it is not in accordance with the constitution it is the job of the judge to over-turn it. That’s how our government is designed to work.

  • Matt

    Why can’t it just be called something other than marriage? The definition of marriage is a union between a man and a woman.

    Also, the problem with today’s society is to many lawyers and not enough independent common sense.

  • Jeff

    I may agree with the decision results but I don’t agree with the fact that a single judge made the choice in how to interpet the US Constitution in order to tell a state how it can or cannot amend its own Constitution. If any court should make a decision in a case like this it should be the US Supreme Court (eventually this case will make it there). I agree there are certain rights that should not be taken away and cannot be taken away by a state (due to the 14th amendment) but I don’t believe marriage is a “right” it’s more of a state condoned privilege.

  • Joanna

    Thank goodness there are some people who understand how our system of government is supposed to work! It is precisely the role of this judge to rule on the constiutionality or not of any and all laws. Ultimately the Supreme Court will do precisely that as well. People who bluster about how judges are somehow overstepping their roles by overturning unconstitutional laws are ignorant.

  • Owen Strand

    The answer, of course, is, yes. And it’s encouraging to see how many people have answered that way. Along the way the reasons have been well presented. Without judicial reviewal of issues like this, all of our freedoms would be at serious risk. One of the posters had it right saying that without judicial defense of the constitution we’d have the tyranny of the majority.

  • E Bittner

    We live in a system of checks and balances. YES judges get to strike down “law” if deemed against constitution regardless of how it became “law.” I lived in CA for 13 yrs. Calif likes to hide behind “voter” mandates under guise of involving “the people”, but really, the elected in CA have no backbone. They love voter referendums because that way the representatives in that state don’t have to risk anything themselves. It’s perverse. Kudos to the judicial system that forces lawmakers (and voters, sometimes) to face the Constitution!!!

  • L C

    Let’s all gather to mourn the death of the US Constitution and the Declaration of Independence. Today a judge has declared himself King. The Founding Fathers are turning in their graves. Forget about the gay “marriage” argument. This is a matter of the explicit will of the people who have decided the direction of their state. Once again in our so called “republic” the vote of the people has been rendered worthless. Much the same way as it is in the Communist Bloc. This so-called “judge” has elevated himself to dictator. And so the people blindly follow in the same way as it was in Nazi Germany. When’s the next flight on Aeroflot to the Soviet Union? At least there a tyrannical government is to be expected.

  • Raphael

    Let’s all gather to celebrate the upholding of the US Constitution and the Declaration of Independence. Today a judge has declared mob rule was not King. The Founding Fathers do not have to turn in their graves.

    The Founders understood that the People could enact laws that were contray to the good of society by oppressing the minority through voting. The judge made reference to a Supreme Court in 1943: “fundamental rights may not be submitted to [a] vote.”

    I applaud the Court for defending the right to freedom and to pursuit of happiness. I am not a homosexual, but by God I will not deny them the right to live peaceably. It was one of the reasons I took the oath to defend the Consitutuion. Liberty and Justice – For ALL (not just the Christian Reich)

  • 4TimesAYear

    @E Bittner – the checks and balances are between the Legislative, Judicial and Executive branches. A judge does not, I repeat, does not, have the right to overrule the will of the people in a referendum.

  • Arabian Girl

    Of course a Judge can over-rule voters. To think not is to be completely ignorant of checks and balances. What do people think the Supreme Court does??

    It reviews LAWS to determine if they are Constitutional. Just because a LAW is passed by referendum doesn’t mean it’s constitutional.

    The only reason people are whining about this is because the Judge didn’t rule in their favor.

  • Pastor Steve

    Blake, just to clarify, for a Christian the highest law is not the Bible per se, but the teachings of the Bible. And even then, Jesus Christ himself is higher than the Law. (Study the book of Romans for the rationale behind that.)

  • Steve the Cynic

    CC&H, don’t you have enough troubles already?

  • Bruce Lucier

    Of course he can–and should. His job is to decide whether a law meets Constitutional requirements.

    Those people shouting “judicial activism” would be praising a decision which made abortion illegal and overrode 50 state laws.

  • Cris

    If a Judge can overrule the PEOPLES vote, then why have a Jury if the Judge can decide for themselves?!?

    It’s the Jury that decides what is and what not. See the irony to this.

    In the case of PROP 8 WE THE PEOPLE decided that it should be BAN. Why VOTE if it’s just going to be overturned… We should just simply raise a white flag, let’s the communist and terrorist get their way in to our country. check and balances.. sure why not compromise instead of striking the PROP 8 down?!? Majority of the voters will see this more CIVILIZED approach.

  • Steve the Cynic

    Like I wrote in my earlier post (August 5, 10:42am), lots of folks weren’t paying attention in civics class.

  • jim

    The thing that bugs me is if they found Pro 8 unconstitutional, why in the hell did it even make it to the ballet?

  • parkybk

    So many ignorant people, so little likelihood that people will understand…

    Prop 8 did NOT create a law — it created a CONSTITUTIONAL AMENDMENT. Now try to think, people. If it is now a part of the constitution, then it CAN NOT be judged unconstitutional. Clearly a judge has no grounds on which to judge it so — it is part of the constitution, and all judges now have the responsibility to uphold it. How this is not self-evident is beyond the understanding of any thinking person.


    How in the world can a part of the constitution be declared unconstitutional? Duh.