A Note on "Activist Judges" (TM)

One can pretty much guarantee that 90% of those blathering in the bigotsphere about the recent California marriage decision have not actually read in any great depth the actual opinion. In their heads, all they know, hear, or say is that because of "activist judges" who overturned "the will of the people," gay people won a culture battle in California.

But wondering whether bigots have actually read judicial opinions with which they so adamantly "disagree" is sort of tangential to my main point. See, I'm more interested in observing the phenomenon whereby pro-gay judicial opinions are hypocritically and/or ignorantly labeled as the actions of rogue "activist judges" overturning the "will of the people." For instance, those opposed to gay rights are particularly up in arms because the California opinion held that "Proposition 22," a referendum directly decided by voters, was unconstitutional. Ironically, and this is the important part, I'm pretty sure we heard the crickets chirping from these same opponents when the (activist?) Governator of California vetoed a democratic piece of legislation that also reflected "the will of the people." The only relevant difference was, of course, that this law was one that legalized same-sex marriage. Remember that?

Observe the hypocrisy in action.

First off, uber-bigot Jose Solano's latest rant against the decision predictably reminds us that the world gets a little bit more stupid whenever he writes a "blog post." After hysterically declaring that "Judicial Tyranny Runs Amok in California," he gets all ranty while displaying his usual ignorance of civics. Specifically, he "teaches" us how, and I quote, "certain courts have decided to ignore the US democratic principals of separation of powers and simply create whole cloth legislation out of thin air" and how the court has decided to "be an advocate for homosexualist interests." Oh wait, Solano doesn't actually teach us anything as he provides no arguments or legal reasoning to back up his bold conclusions. Superb "analysis." See, in Jose-land, one's conclusions can be stated as fact with no supporting evidence added. But aside from his ignorance and question-begging conclusions, let's observe the hypocrisy.

While he decries the California Court for overturning "the will of the people," this blogger who is so very "concerned" with upholding "democratic principles" is the same man who once said that he thinks it's a "problem" that all people in our nation are allowed to vote. Secondly, and most importantly, in this other priceless blog post, Solano urged the Governator of California to veto (again) the pro-same-sex marriage bill that was, via California's elected representatives, the will of the people. He says:

"Hang in there Arnold! Just give it the same old nay you gave it the first time"

Number of times the elected California legislature passed a bill legalizing same-sex marriage: 2. Number of times the Governor of California overturned the will of the people by vetoing the bill: 2. The rancid smell of Jose's and other bigots' hypocrisy: priceless.

Perhaps the poor lad thinks that "democracy" means "people can only vote how I vote, legislators can only pass laws that I agree with, and judges can only make decisions I agree with." Sorry Jose, but that's not how it works.

Ed Brayton points out further hypocrisy by first duly noting that the Family Research Council is "outraged" over this California decision because it overturns "the will of the people." Then, remembering that when, in 2006 "the people of Oregon passed a law authorizing voluntary assisted suicide for the terminally ill" the Family Research Council filed an amicus brief urging the Supreme Court to strike down this law. Even though it was "the will of the people." Judicial activism, conveniently, is acceptable as long as the judge is making decisions with which one agrees.

This hypocritical attitude reflects how "the will of the people" argument is nothing but a rallying cry to get the masses on whatever side the speaker wants them to be. We Americans love our democracy, and so nothing upsets us more than to hear that "elite" and "tyrannical" judges are eroding it. Pretty much all one has to do to get the masses to dislike and oppose "the other side," is to label the other side some sort of enemy of American democracy.

Yet, at its heart, the "tyranny" cry is simply erroneous and extremely problematic.

For, if the judicial branch is not "allowed" to protect minority rights and if the legislative branch is not "allowed" to protect minority rights, then who will? Surely not the people, as many of "the people" regularly show that they don't care about trivialities like equal rights. Are equal rights and minority protections something that we, as a society, value? All of this, of course, leads me to ask: Why have a judicial or legislative branch if their purposes are merely to rubber stamp the mentality of the mob?

Do we really want our nation to be ruled by the popular biases of the day? That always works swell in nations brimming with diversity. Shall we rid ourselves of the pesky concept of separation of powers and instead put every issue facing our nation up for a popular vote? (Or are only issues about gay people and "morality" up for popular vote?)

It is here that I'd like to note a few things about "judicial activism." One, these days the phrase is mostly used by those obsessively opposed to gay rights to describe, denounce, and discredit any judicial opinion with which they disagree. Two, when those opposed to gay rights invariably cite the fact that "thousands" of people voted for the law that the "activist judge" overturned, all that really tells me is: Neat-o. Thousands of people, likely misled by hateful propaganda, voted for a bad law. That point, of course, leads me to point three. In light of the fact that so many are led by propaganda ("gay people are worse than terrorists," really?), it is the duty of the court to ensure that the rights of minorities are upheld. Also, in light of the fact that various studies reveal how ignorant voters really are, that my rights, or anyone else's, rest on such ignorance is a scary thought.

There are pretty good example of this backlash all over the bigotsphere. Yet, I believe that much of the backlash comes from serious misunderstandings and/or a lack of wanting to understand the other side. A lot of anti-gay propaganda and misinformation is out there and, coupled with prevalent homophobia that exists in many communities and faiths, it is easy for people who are generally decent human beings to become ignorant at best and bigots at worst.

For instance, one young student in a ministry school (nonetheless!), after implying that the California judges are "tyrants," states:

"I am firmly convinced that this fight is more about people attempting to stick their thumb in God’s eye and not about their rights....If you already have all the rights and priveledges [sic], why on earth would you still need to get the state to recognize it as a “marriage”? "

First, note how it is necessary to this young man's position to "other-ize" gay people by turning them into immoral heathens who are just out to anger god. Sadly, his writing indicates that he believes gay people care more about smiting god than they do about the human dignity that comes with being recognized as a legitimate family.

Heterosexuals, good. Gays, bad. What a simple world we live in.

Secondly, and most importantly, he doesn't even try to understand where gay people are coming from. Nor has he, I'd bet, even read the opinion he so eagerly denounces. So here's a hint for the young lad: Get out of the echo chamber which you inhabit and figure out "why on earth" same-sex couples seek "marriage." Actively search out positions contrary to your own. Even if you find that you don't agree with other opinions, you will at least have a better understanding of where other human beings are coming from and then you can at least make an argument that does more than reveal your laziness, ignorance, and possible bigotry.

You could start by reading page 11 of the California marriage decision that explains "why on earth" same-sex couples want their unions to be called marriage. It will explain how referring to same-sex unions as inferior-to-marriage "domestic partnerships" imposes harm on same-sex couples and their children by sanctioning the view that same-sex unions are of lesser stature than marriage. It creates a situation where same-sex persons and their families are second-class citizens. I am confident that even if you, in fact, believe that same-sex couples are inferior to heterosexual ones, you can at least understand that such a characteristic is damaging to same-sex couples.

I don't have much sympathy for those who "fail to understand" the key motivations of the other side when the other side's positions are out there begging to be discovered. Because really, those who declare that gay people seek equality out of some desire to smite god and who simultaneously admit ignorance as to the motivation of gay people doesn't particularly show that one is acting with good faith. In fact, those who act in such a way succeed only in telling the world that they're perfectly fine being ignorant.

And why should ignorant voters tell me what my rights are, again?

See, this "gay marriage" culture war demonstrates precisely that our US brand of separation of powers/checks and balances is working as it should be. The judicial branch just declared that a law was unconstitutional. If "the people" don't like it, they will utilize other tools in our democracy to overturn this decision. For instance, they may or may not choose to amend the constitution to make laws banning same-sex marriage constitutional. Whatever "the people" choose to do, these so-called "tyrant" and "activist" judges do not automatically have the last say on the issue.