Friday, May 16, 2008

Was It Judicial Activism?

Yesterday, the Supreme Court of California struck down a ban on marriages between homosexuals. Immediately, Tony Perkins of the Family Research Council decried the decision as a typical case of judicial activism in which the court overrode the will of the people. Too bad, the Family Research Council actually fought to have the will of the majority overturned when "the people of Oregon passed a law authorizing voluntary assisted suicide for the terminally ill." (I know, the hypocrisy is stunning, but then we are talking about the Family Research Council and Tony Perkins.) You can read a perfectly scathing and brief account of the FRC's duplicity in this article, courtesy of Dispatches from the Culture Wars.

Keep in mind that if the will of the people were the law of the land, with no regard for the principle of equality between human beings written into U.S. law by people more enlightened than most Founding Fathers (ooh, sacrilege!), segregation would likely be alive and well in this country, not to mention child labor, no vote for women, etc. (And don't be fooled, that is exactly what the Rehnquist and the Roberts courts, with abominable Justices like Scalia and Thomas, stand for when they reject legal principles that have brought us equal rights for women, blacks, and homosexuals.)

Unlike most of the people who will come out to criticize the SCC's decision in the blogosphere, I actually had the good fortune of hearing the arguments made by both sides as C-Span broadcast the recorded SCC sessions a couple of months ago (and between 1 and 4 am, on a working day). I knew I needed to sleep, but the arguments presented were so fascinating that I was glued to the TV set. The line of questioning by the members of the *predominantly conservative* court and the arguments presented by the attorneys (particularly those by Therese Stewart) were riveting. Having heard the arguments, and the many references to other landmark cases in California's history, particularly those on interracial marriages (see references to Perez v. Sharp in the Court's opinion), the Court's decision seems right on the mark.

Finally, to preempt the claim that this decision should/will be reversed because it was rendered by a rather divided court (three of the seven justices concurring with Justice George, with two more both concurring and dissenting), let me quote one very important reference in the opinion to the Court's decision in the Perez case: "The decision in Perez, although rendered by a deeply divided court, is a judicial opinion whose legitimacy and constitutional soundness are by now universally recognized."

If you are interested, you can view the pdf here.

P.S. For the record: I am happily married (to a woman), have no stake in this fight (other than the fact that I would like to see fellow human beings be treated equally) and do not think that churches should be forced to marry homosexuals. May the unequal treatment of homosexuals, at least in the eyes of California law, rest in peace.

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