RNC Deputy Chairman Frank Donatelli just appeared on MSNBC to discuss California’s gay marriage decision and his party’s stance on the matter. In addition to criticizing four justices for legislating from the bench, Donatelli said – and excuse us for paraphrasing – “It is my understanding that John McCain’s judges would not allow such a ruling.” That is, judges appointed by John McCain would likely not endorse equal marriage rights.
No Surprise.
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Mike
Didn’t he get the memo that the RNC appointed those judges to the California Supreme Court? They really need to come up with some new material.
Kevin
After consideration, I think I have to come out and, somewhat, support the conservatives’ point. I believe that the role, in a democracy, of judges is to interpet existing law. The legal reality, here, gave judges the opportunity to, in essence, create a new law: marriage for homosexual relationships. This so-called “legislating from the bench” isn’t the method of legislation that I believe the framers envisioned, nor do I believe it is a method that is supported by political scientists.
Am I happy with the outcome? You bet! The fact that now I can marry my partner and enter into a sociolegal institution with him makes me feel less like an outsider to society and more like an enthusiastic insider. Am I happy with the means to this end, though? No. I would be a lot happier if a law or amendment were proposed in the state legislature and then passed into being. That’s the way I feel our republic is supposed to operate.
Having said that, I certainly don’t think for a minute that, given a gay marriage bill in the legislature, conservative opponents wouldn’t use any means available to block the bill, including using the judiciary. Just because my opponents will use these tactics, though, doesn’t mean I’ll like doing the same!
Phil
To respond to the above comment, I think that that interpretation is too simplistic. Was it legislating from the bench when the USSC moved that miscegenation statutes like the Racial Integrity Act of 1924 were unconstitutional (Loving v Virginia)? Or what about when it struck down a law in New York forcing children to say an ecumenical prayer (Regents case)? The role of a court system in a government like ours is not to interpret existing law, but to hold it to the standards set out in our constitutions and the Constitution. It’s not legislating from the bench to say that exclusive legislation is a violation of equal protection clause. In fact, that’s the point of the court – to stop legislation from violating fundamental principles – not to make sure that violating laws are upheld. THAT is when the courts don’t do their jobs.
Rob Moore
Kevin, I cannot agree with your logic. The role of the courts is to adjudicate based on existing laws within the context of constitutional frameworks. The judges did not create new laws, but struck down existing statutes that are in conflict with the state’s constitution. All state laws in every state including a state’s constitution are subordinate to the U.S. Constitution and national law, but as long as there is no conflict between a state’s laws and constitution and no conflict between the states legal principles and federal law, the courts will not find differently. That is not the case in California or Massachusetts. In Massachusetts, the court said there was no constitutional basis not to extend marriage benefits to gay people. In California, statutory law banning gay people from marrying were ruled to be in conflict with provisions of the state’s constitution; therefore, they are invalid.
No new laws were created despite the claims of the Republicans.
Assuming the current attempt to pass an amendment to the U.S. Constitution taking away rights of gay people fails, it will be interesting to see if any gay couple legally married in Massachusetts or California sues to enforce constitutionally mandated recognition by all states of these marriages under Article IV of the U.S. Constitution. How would the Supreme Court rule regarding the effect of DOMA on this obligation? Could the right-wing self-proclaimed strict constructionist Scalia see himself voting to declare DOMA as unconstitutional based on Article IV or wold he find some torturous way of wriggling out of going against the Vatican?
CondeNasty
Legislating from the bench is better than legislating from the pulpit.
Buffy
@ CondeNasty: Agreed!
Bill Perdue
This decision was made by three Republican judges, one appointed by Ronald Reagan and the lone Democrat among the California Supremes, and even he got his first posting from rightwing Republican governor Deukmejian.
Say goodbye to the theory that Democratic judges are better than Republican judges. They all bend with the wind when it’s a gale force mass movement that won’t take no for an answer. It’s the mass movement that counts, not which of the two homophobic parties has the most judges.
Kevin – you’re full of it – miseducation that is. The court was most definitely not “legislating from the benchâ€. It said that the California Constitution forbade unreasonable and bigoted denials of the equal rights enjoyed by all citizens.
If you’d skipped the sophomoric poli-sci classes and read a little history you’d see that that’s hardly a new and unique concept in American jurisprudence. In fact it first came to the worlds attention the morning of April 19, 1775, when the Minutemen gave the Redcoats a memorable introduction to American legal concepts at the battles of Lexington and Concord.