Conservatives Crying Wolf
Conservatives' cries of outrage in response to the California Supreme Court's recent decision recognizing same-sex marriage were as shrill as they were predictable. William Kristol accused the court of "ma[king] social policy from the bench." Dinesh D'Souza characterized the decision as a "legal fraud," having "little to do with constitutional reasoning and everything to do with an assertion of political power." Hugh Hewitt, a lawyer himself, wrote menacingly about "another judicial putsch" and "[c]ourts unbound by any sense of limits, by any sense of restraint."
These stale allegations of "judicial activism" -- a term generally devoid of any useful meaning -- are particularly inapt here. As others have noted, the justices on the California Supreme Court are initially appointed by the governor, but thereafter must be reelected in order to keep their positions. California's legislature also twice passed bills legalizing same-sex marriage, only to see them vetoed by Gov. Arnold Schwarzenegger. And Gov. Schwarzenegger's very reason for vetoing the bills was that "the matter should be determined not by legislative action . . . but by court decision."
Though conservatives may pretend otherwise, there was thus no cabal of unelected, power-hungry judges here, seeking to impose their moral views on California by judicial fiat. What happened, rather, was that a group of duly appointed and reelected judges decided a case in accordance with the legislature's wishes and as explicitly requested by the governor. D'Souza and Hewitt should be ashamed of themselves for throwing around terms like "legal fraud" and "judicial putsch" to describe what is actually a fairly remarkable consensus among all three branches of California's government.
Another problem with the conservative critique is that it never explains why the California Supreme Court's decision was wrong on the merits. Chief Justice George's majority opinion was not some kind of policy manifesto that same-sex marriage should be allowed because he thinks it is a good idea. The opinion, rather, was an exceedingly thorough, 121-page, quintessentially legal document. It first read existing California precedents as creating a fundamental right to marry the person of one's choice. Once acknowledged, said the court, this right cannot be limited to heterosexual persons only. The opinion then pointed out that California's statutes on marriage distinguish between opposite-sex couples (who are allowed to marry) and same-sex couples (who are not). According to the court, these distinctions are subject to strict judicial scrutiny -- which they cannot survive since they actively harm same-sex couples without providing any compensating benefit to opposite-sex couples. "[T]he retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling . . . to justify withholding that status from same-sex couples."
The predominant conservative response to this detailed legal analysis has been -- silence. Do Kristol, Hewitt, and their ilk disagree that California case law recognizes a right to marry? Do they think the court defined this right at an inappropriate level of generality? Should discrimination on the basis of sexual orientation not be subject to strict scrutiny? Is California's interest in retaining the traditional definition of marriage weightier than the court concluded? We simply have no idea. All we know is that most commentators on the right have been so hasty to brand the decision as "judicial activism" that they have failed even to argue that it was wrong.
To be fair, a few conservatives have halfheartedly engaged with the opinion's actual reasoning -- but their efforts to date have been laughable. D'Souza, for example, criticizes the court for "appeal[ing] to the equal protection clause of the Fourteenth Amendment." But the court plainly did not do so. Even a cursory glance at the opinion shows that it was based solely on California's own constitution, not the federal constitution. Ed Whelan, meanwhile, pulls out the old slippery slope in response to the opinion's reliance on the right to marry the person of one's choice: "Is there anything . . . that would prevent [that right] from being invoked by, say, practitioners of adult incest or plural marriage?" As the court made clear, the answer is obviously yes. "[T]he state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment." Whelan's only riposte is to insultingly suggest, against all available evidence, that homosexual relationships are equally harmful to families.
Right-wing bluster about "judicial activism," of course, is nothing new. But my hope is that just as tired conservative tropes about appeasement and patriotism are steadily being discredited in the foreign policy context, so too will the bogeyman of activist judges soon be exposed as the fraud that it is.
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Um. the silence is DEAFENING from the left. Especially OBAMA.
Heavens to Betsy! The California Supremes have ruined my marraige! I feel so cheapened. I don't know how to tell my wife. All is lost. The children and grandchildren, it all seems so pointless now that they have ruled. Everything is different. I'll never be able to look at her the same again. I am sure the same holds true for conservatives everywhere. The threats have come true and now I can see my family falling apart before my eyes. The fabric of our blessed society is rent asunder. I just can't care to go to work anymore.
For the life of me, this disingenuous crackpot opposition is nothing but pure and simple hate. Whatever language they couch it in, it is hatred and prejudice. If the state has an interest and the ability in regulating gay marraige then they also have the same ability with regard to straight marraige, interacial, intereligious, interstate
Of all the things we have to worry about, I can't see how this is worth getting into a tizzy about. Why should I care what someone does in their bedroom? How does this hurt me, thte state or my marraige? I can see how the current status hurts Gays and Lesbians and I don't see how anyone gains from that except from the satisfaction of hurting others and frankly I don't care or see any relevance to whether they were born on chose to be that way, either.
I think it is quite odd that 4 judges overturned millions of voter's opinions, I would expect a constitutional amendment on the ballot this fall.
4 judges overturned voter's opinion?
Did you read the article?
He is referring to the state referendum back in 2000 I believe against gay marriage.
In any event, I am OK with having an Admendment on the ballot in November to give voters the latest chance to weigh in, even though some could argue that civil rights should not be determined by the majority.
I am a gay man in a committed relationship.
The judges are there precisely because from time to time, they have the duty (as they see fit and within the boundaries of the constitution) to overturn the opinions of voters. The constitution is in place in part to protect us against the "tyranny of the majority." If a majority of voters in California decided that it was appropriate to dispense with "trials" and send all persons accused directly to jail for 10 years would that be right? Wouldn't you expect the supreme court to step in and overturn that statute? The voters are not always right. Conditions change, the mood of the electorate changes, and values change. What would have passed easily in 1968 would not have had a chance in 1958 or 1988. The constitution is there as a touchstone - it is the anchor that we keep coming back to that reminds us of the core principles that this country was based on.
So government by the people for the people goes right out the window?
Your analysis on the due process issue is somewhat flawed, as was the Court's, due to a misreading of what the fundamental right of marriage was intended to represent when it was argued previously and what the Court should have recognized, which is this: no person alive when the state constitution was written and certainly not when the fourteenth or fifth ammendments were written, would have recognized the right of homosexuals to marry as a fundamental right requiring strict scrutiny (a standard which obviously developed later). The very definition of marriage has not changed and to treat it as if it has is simply importing your definition. Your citing of precedent simply reflects the court's long record of fashioning a fundamental right where none had existed. Homosexuals have the same fundamental right that I have, which is to marry a person of the opposite sex. If the definition of marriage is to be changed then that has to be done by the voters, the legislature and then the chief state executive. The only record of that process is negative toward gay marriage. Californians recently voted 2 to 1 to ban gay marriage (a fact you conveniently omitted). There is a ballot measure to change the state constitution on the ballot in November. It is expected to pass overwhelmingly. Therefore this is just one stop on the train, the final issue of whether there is a fundamental right to homosexual marriage will be made by the SCOTUS.
"Californians recently voted 2 to 1 to ban gay marriage (a fact you conveniently omitted)"
Odd that a poster would have ignored that isn't it . . . he must have an agenda.
"no person alive when the state constitution was written and certainly not when the fourteenth or fifth ammendments were written"
I'm not sure you can say that factually.
Even if you can, so what? The right to marry someone of the opposite sex is poo-poo if you're gay. You're not? Great. Others are, and what the two dudes or two ladies across the street do doesn't have to change what happens in your house.
Farthermore, if they wouldn't have recognized gay marriage as a fundamental right? What rights would they have recognized for gays anyway? They were wrong. It's time to move on.
Rickmv's argument implicitly relies on the belief that regressivism is such an important social value that it must trump legality and common sense. I don't see any point in arguing with someone who believes that, and I'm confident that the regressive minority will prove unable to impose their will on the rest of California.
I trust you will accept gay marriage if the voters turn down the amendment in November, at least accept it legally if not morally.
And if the amendment passes in November, it will only be a matter of time before gay marriage is universal given the large majority of people under 30 are OK with it.
I find opponents of gay marriage who argue the destruction of the family interesting. While gays are trying to strengthen committed relationships, straights continue LEGAL divorces at 50% and I do not see gay marriage opponents rallying to outlaw divorce.
This has zero to do with the family and everything to do with a moral revulsion of homosexuality - you know - fully loving someone of the same gender, including physical intimacy - how awful!
Republicans LOVED when courts made up the rules as they go (Bush vs Gore anyone?)
But when they actually rule based on the Constitution, they are "activists"
To clarify, state constitution.
I chatted with a conservative the other day who said he "decided he preferred girls" in KINDERGARDEN!!! He says this proves that gays "just made the wrong choice" so they don't deserve equal rights.
There is absolutely no limit to the amount of self delusion a right winger will go through to support anti-gay bigotry.
So you met one guy who was like that so it must be the opinion of all right wingers right? Last time I check California was a Democratic state and the people voted against gay marriage.
I for one could care less either way just as long as they stop the goofy parades where they dress up like porn star clowns.
You know they don't want to argue the merits. They can't. They don't know how (the Kevin James disease). Yet "judicial activism" isn't exactly an empty phrase. It's Orwellian newspeak for not ruling "correctly" according to the biases of the writer's politics. They really don't care about upholding law or precedent. Heck, look at the Schiavo case. Is there any precedent for overturning a husband's ability to make decisions on behalf of his wife? Not unless you can prove he acted in a criminal way against her. Barring that, there's nothing. Even this proviso is of fairly recent standing since legal tradition held that the wife was subsumed into her husband upon marriage (there is only one legal entity and that's the husband). It would have been far more activist of a judge to rescind the husband's legal standing for any arbitrary reason just because wing nuts wanted to keep her in that vegetative state. That's why the word to you seems to mean nothing. But it's a weapon to label any judge who doesn't tow their line as "activist" when it's being far more radical to embrace their positions. More "up" is "down" and vice versa.
Kevin James - "It all goes back to appeasement Chris. It's the exact same thing. . . . You're not going to put me in this box Christ. . . . Chamberlain? You just said he was talking about Barack! Which one is it Christ? . . . I don't know, Chris. I don't know. . . . Hey! Excuse me, Chris. I take exception to your saying I don't know what I'm talking about!"
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