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[personal profile] majutsukai
So, there's something I've been mulling around in my head lately. It feels suspiciously like a rant brewing up in there, actually; so I figured I'd get my thoughts out in writing, if for nothing else than the satisfaction of making them concrete.

So, here goes, I guess.



A little disclaimer. This IS related to Proposition 8, but not in the way you might expect. The content of Prop 8 has been discussed enough, I think; there's little left to be said about it. What I want to talk about is the format of the proposition, and the processes that brought it about. This is more about American government than it is about the Gay Marriage "debate". That said, like any other human being, I'm not without my biases. I don't expect them to keep themselves unduly separate from this rant, nor do I feel particularly obligated to keep them as such.

Anyways, to the meat of the matter: What I want to talk about is the court system.

A common refrain I've heard more times than I care to recall is about how the supreme courts are full of "activist judges" that are "legislating from the bench". Frankly, I've had enough of this sort of reasoning, and I want to go over-- very clearly and, if need be, exhaustively-- why this reasoning is wrong.

First: Story time. Prop 8 was a reaction to a particular set of events. California voters decided, by a slim majority, to ban same-sex marriage. The California Supreme Court, however, stepped in and declared this decision unconstitutional.

And the "ACTIVIST JUDGES!" accusations just start rolling in, of course. Here's what I want to ask the people saying this-- do you even KNOW what the courts are FOR? When I hear people accusing judges of legislating from the bench, I can't help but think they're under the impression that the judges are just supposed to sit on their benches looking pretty 'til they kick the bucket.

There's a phrase that figures pretty importantly into this issue, and that is "tyranny of the majority". Basically, there are issues that cannot be fairly decided by popular vote. Period. That's why America is a Republic, and not a pure Democracy.

Let me draw a parallel here. Remember the age of the Civil Rights movement? (Well, you don't have to remember it personally, but I'm sure you follow what I'm saying.) Try this little thought experiment on for size. If the issue of integration had been put to popular vote in 1967, would it have been upheld or struck down?

In that era? The answer should be obvious. If we made all our decisions based on popular vote, we'd still have segregation. But those damned activist judges just had to go and legislate from the bench and impose integration on us, didn't they?

Of course. The common zeitgeist of that age would not have allowed the issue to be fairly decided by a popular vote. As obvious as the issue should have been, the vote would have been tainted by thousands upon thousands of people who were not affected at all by civil rights for black Americans, but still felt the need to abridge their status as equal citizens. That's key.

People DO things like that. That hasn't changed, and it isn't likely to soon. Legislation that targets a specific group of people, a group which is, in numbers, the minority, simply cannot be put to popular vote. Not fairly. It took the fair-minded judges of the Supreme Court to tell the collective American electorate to sit down, shut up, and deal.

This is why judges are in every way insulated from popular opinion. They're not elected by a popular vote; instead, they're appointed. They never declare a party affiliation. Simply because the courts were created specifically to not be influenced by such things. So why on earth SHOULD they defer to popular opinion? It's their job to examine popular opinion on its merits, not to accept it without question.

So when the Supreme Court judges of California struck down the anti-gay-marriage decision, yes, they were doing their job. They were telling the electorate that, no, it's not your place to make a decision like that, numbers be damned. This isn't your issue.

And how does the electorate respond? They propose a goddamned fucking constitutional amendment.

That just turns my stomach. California basically flipped a massive bird to the concept of checks and balances. Why even HAVE courts if you're going to pull shit like that?

And the anti-Prop-8 protests are being called temper tantrums? Say hello to Prop 8, the original temper tantrum. The (barely-majority) electorate was pissed that it didn't get its way on an issue that didn't even affect them.

The propaganda du jour has convinced a lot of people that it would affect them, but no, it doesn't. I'm sorry. It doesn't affect you. If Bob and Joe want to have the benefit of civil marriage, then your marriage is not the worse for it.

THIS is what they call tyranny of the majority. The majority basically hijacked the legal system to pass this piece of trash that abridges the rights of a group of people not numerous enough to defend themselves against it. THIS IS WHY THE COURTS EXIST.

Thankfully, the California Supreme Court hasn't forgotten itself. This issue, and the processes that brought it about, are being examined. I expect the worst of the "activist judges" bile is yet to come because of it, but I find it hard to care. Let them throw their temper tantrum.

Fuck the electorate. The Constitution has spoken.
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