Sunday, May 18, 2008

Activist Judges

I've been mulling this one in my mind a bit lately, and I shall now make what's probably going to be a feeble attempt to express my views on this topic.

Lately, there's a lot of talk amongst conservatives about "activist" judges. This seems to be a buzz-word for "judges who do things that conservatives don't like." In particular, the accusation is coming at the California Supreme Court for declaring that the ban on same sex marriage is unconstitutional.

My friend, Scott, put it pretty well on his blog when he wrote, "If they aren't being activists, then they aren't doing their jobs. The Supreme Court made a correct, though not popular, decision in 1954, and now the California Superior Court made a correct decision in 2008." This is exactly how I feel.

Conservatives are very fond of attaching labels to everything in order to immediately discredit the other side. Instead of really getting into the nitty-gritty over how one can reconcile the concept of equal protection under the law with discrimination based on sexual orientation, they just slap the "activist" label on the judge and leave it at that. Personally, I'm willing to see a constitutional ammendment where if anybody says the phrase, "activist judge", they get a kick in the groin. Second offense, the kick is administered with steel-tipped shoes. Third offense and they are tied to a groin-kicking machine.

Here's the thing, the argument is that these judges have gone against the popular opinion amongst the people. Well, that's exactly what the courts did in 1954 when segregation in schools was made illegal. They were most certainly going against public opinion on that one. If the people could have voted on it, then there would still be segregation (maybe even to this day - who's to say?)

Is this issue as serious as that one? Is not allowing gay people the right to get married as egregious as segregating schools? Well, I'm neither gay nor an ethnic minority, so I'm not even going to touch that one. What I do know is that I've yet to hear an explanation how not allowing gay people to get married is somehow not discriminatory. Every argument I hear relies on some sort of logical fallacy, whether it's the argument-from-tradition (and if we used tradition as our benchmark for what's right, we'd still have slavery!) or the slippery-slope of "now polygamy and marrying badgers will become legal!"

The thing is, if you're able to believe that everybody deserves equality, but gay people do not deserve to get married, then you are engaging in double-think. These are two contradictory statements.

Scott also mentioned that he hopes that it does come down to having the public vote on a constitutional ammendment, as he feels that the public opinion on this one has changed enough that it wouldn't get the support that it needs. I'm not sure that I have his confidence, but I think that there are a lot of people out there who have an "enough of this, already!" kind of an attitude about it that it won't get the votes that it needs. Also, there are a lot of younger people who are able to vote now who couldn't the last time this came up. Trends show that the younger generation is more open to the idea of marriage equality.


ForHisSake said...


Just one thing to think about. If judges can overturn popular vote, than the "people" are at the mercy of who ever happens to be sitting on the bench. Heaven forbid if we should have a panel of Christians up ther making decisions that impact all of the "people".

Do you want them to have that kind of power?

Lance Christian Johnson said...

Actually, the way I see it is that the people are at the mercy of the Constitution. That's what the judges used to make their decision - not just their own personal opinions.

get_education said...

I had a tendency to say that democracy is crap. Precisely because I thought that illiterate zealots could impose their crap on the minorities. Actually, this preoccupation is what allowed me to diminish a bit my own ignorance about how many things have been put in place to avoid such things from happening in the USA democratic exercise. In any event, and Sorry Lance, if this actually does not help a lot (your "refrain from helping" thread), only an educated nation can truly be democratic.

So, forhissake, the whole thing was legal and based on the constitution. You have a very minimalist notion about how democracy works in the USA. That is all. If it were just about votes, then the oppression of the minorities would be all you had. Actually, you would be among the victims. Religious zealots are not the majority. Christians might be, but zealots are not. Zealots make a lot more noise though.