This Is Not A Post About Gay Marriage

As you know, The California Supreme Court dropped a gay atomic bomb on Thursday when they overturned the ban on same-sex marriages in that state. But that is not what this post is about, no matter how much I enjoy  seeing Portia Di Rossi kiss a girl even if it is just Ellen DeGeneres.

I've caught some of the coverage on the cable news channels and particularly on talk radio and have had just about an assful  over two things I keep hearing said over and over again.

Thing 1. "We've got to stop these activist judges."

Okay, someone help me here. President Bush was the first person I ever heard use this term and it has caught on like Free Hot Wings ever since. If a judge or court makes a ruling one disagrees with, then they are characterized as "activist judges."  But if one agrees with the ruling then the judge or court was "accurately interpreting the law." Because.....everyone who makes those statements is also a constitutional scholar so they would know?

That doesn't give the judicial branch, generally the most learned of any part of our government, much credit, does it?  In this particular ruling, for instance, the California Supreme Court, where six of the seven were justices were Republican appointees, voted 4-3 to overturn the earlier Appeals court ruling. 

You can read the opinions of all seven and they all justify their individual conclusions based on their interpretations of the Constitution, not based on their personal views on this one issue. They used the same criteria earlier courts used to make discrimination against citizens based on gender and race illegal in this country. I am not saying there aren't any bad judges or judges who sometimes make legal mistakes but that is why we have a higher court in place to have a way to settle any questions. This system worked exactly the way it was designed, regardless of the outcome.

Thing 2: "This ruling lets four wackos hijack the will of the people."

First of all, we've done pretty well in this country with a "majority rules" form of government for a very long time.  51-49 still makes a law in the Senate, and 500,000 to 499,999 still gets you elected as Mayor of any number of good-sized cities in this country. 4-3 means 4 wins.

Secondly, and this one irks me the mostest. It is not the job of the California Supreme Court or any other judge to rule according to the will of the people. No, their job is to rule according to the law. The people can legislate their will as much as they want as long as their wishes do not violate the Constitution. There are lots of laws that I disagree with and many rulings that make me furious. But that doesn't mean judges should care what I think. That is not their job.

Thing 3 (Bonus Thing): This really isn't a post about gay marriage. It is a post about fifth grade civics. Executive Branch, Legislative Branch, Judicial Branch. Rinse. Lather. Repeat.

Comments

[Geo]

Ah, conservatives and liberals. Can't win with them, can't win without them.

[Diane]

Amen, brother.

[Jonas]

Oh Bean, why do you have to be part of the gay agenda?? I'm just saying...HA HA HA...

[K]

AMEN BEAN!!!!!!!!!! The only way I could agree with you more would be if there were 2 of me!!!

On a side note, I've been reading message boards on this topic and there are many, many people who think the "lunatic fringe" in California should fall off into the ocean. Because people were given rights... the same rights as most of the people in this country. I hate retards.

[Christina L.]

Bean, you've redeemed yourself for posting that scary image of the over-fed naked lady.

Seeing Ms. Portia smooching another lady brightened my day.

And even more important - you're speaking my language with your impressive awareness and insight as to how the judicial branch works and why it's important they not make a decision based on the will of the people. The system of Checks and Balances exists for a reason. The will of the people got our current idiot frat-boy leader in the White House. I'd rather trust Former Justice Sandra Day O'Conner's decision making than the hicks who elected Bush. Just saying.

[Stacey]

I just want to cringe when I hear the words "activist judges". If it weren't for the so-called "activist judges", then Jim Crow laws would still rule the land.

[Stacey]

And another thing -

Those who oppose gay marriage are, IMHO, just a bunch of busybody homophobic butt-inskies. What two consenting adults do in the privacy of their own homes and lives is no one else's business. No one's. Damn ignoramuses.

[Molly]

If you were at all inclined to ask for an "amen", I would give you the heartiest of ones in response.

Can I add a #4 to your rants? To the people who say.... "Well, now we are going down the slippery slope. Next thing you know, people are going to be marrying their dog."

I would like to respond...."If your dog is a legal citizen, pays taxes, and is able to communicate their assent, let me know where you are registered at Petco & I'll send you a wedding present."

Thanks!

[Vic Rattler]

The idea of the Bush era being the era of "Activist Judges" is appropriate considering the Supreme Court case that made him President stands alone as the only one that is not to be used as a precedent for future decisions. Something the majority included because they knew what they were doing wasn't "interpreting existing law" but making a decision based on personal feelings. A decision that contradicted decades of their own legal opinions, so they didn't want it to, you know, mean anything.

Your bonus point about civics class is the root cause of all this. I didn't learn anything substantive about government in school, what I do know I learned on my own.

Sorry for the long post, I get a hard-on for fairness.

[jes]

I always thought gay rights was a rights issue. If rights were subject to the votes of the people they really wouldn't be rights. Of course - that assumes marriage is a rights issue - which is also in fierce debate - I know.

[Cain]

The term "activist judges" has been around since at least the sixties when a wave of decisions, most expanding civil liberties, were decried by conservatives. The usage is exactly as Bean says -- someone is labeled an activist judge whenever s/he makes a decision with which you disagree. Scalia, an extremely conservative justice, has said it's a virtually meaningless term.

A strong case could be made conservative justices tend to be more activist, what with wanting to overturn decades of precedent. Justice Thomas has said states should be allowed to establish churches! What strikes me as curious is that conservatives historically distrust the will of the people, and are relatively more enthusiastic about a "Guardian" class protecting civil society from the hoi polloi (see Cheney's "So?" comment on a majority of people opposing the war).Someone mentioned Bush v. Gore. In the election Gore undeniably won 500,000 more votes, and Florida's state supreme court said he had a right to a recount. Not only did the Supreme Court decide the winner, but they ran rough-shod over a conservative principle upholding "states' rights." Bush does this when it comes to interfering with Shaivo, Oregon's physician assisted suicide, and medicinal marijuana in CA.

Anyway, it's only a matter of time before the Supreme Court rules gays in every state will have an equal right to marriage via the 14th Amendment (just as it ruled in LOVING on inter-racial marriage). The writing is on the wall.

[Kate]

Thanks for this post. I was able to have a conversation with my Jesus loving father in law and use most of your points. Then I got to tell him that I had to hurry home to do a write up on Darwin for my anthropology class.

:)