Letters to the Editor
Scientician
Published Letters: 545 Editor's Choice: 1
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Chris Dowd:
[Read the article: The Kucinich court decision and "judicial activism"]
[Read more letters about this article: Here]But please. The notion that same sex marriage being all of a sudden found to be a violation of "rights" is not an abuse- is not text book activism? I find that more than a little dishonest.
I don't agree. In a culture where homosexuality is "known" to be an aberration, a choice or some kind of mental disorder requiring treatment and pity if not scorn, it would make perfect sense to reject the notion that homosexuals have the right to marry in the same way one might reject the right of a suicidal person to commit suicide. If you believe homosexuality is harmful and a form of madness, it makes arguable sense for society to not enable that harm or madness by legalizing marriage for them.
However as our understanding and comprehension of the phenomenon improved, it became increasingly clear that homosexuality is not an aberration, nor a mental disease, nor even really harmful to its "victims." Thus the legal reasoning about denying them marriage takes on a different character.
As to why this "suddenly" happened, it has to do with inflection points. Once society began moving towards treating homosexuality and heterosexuality equally, some point of critical mass must exist where such equality moves from attitudes to the legal sphere.
The short point being, a ruling based on wrong premises, information and assumptions can be internally coherent and "just" but becomes unjust once those assumptions and premises are shown to be false.
This is exactly what has happened with gay marriage.
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Chris:
[Read the article: The Kucinich court decision and "judicial activism"]
[Read more letters about this article: Here]Well, that's the thing. "Our understanding"? That's your understanding of homosexuality. Obviously it isn't everyone's. And if "society" reached certain new views on the subject then there are insititutions available to them to reflect their new views on the subject. They are called legislatures. I may agree with everything you said. But that doesn't mean I want a judge suddenly saying- "Well gee- ok now-society thinks something new about this topic. Therefore- the laws that we had before? Meaningless. Here is the new understanding and it is the law because well- I am saying "society" now has a new view." That is activism. That is what people have a problem with.
It now seems a great bulk of people and opinion makers now think the President is some sort of God King whose power should have no limits. Does that mean that "our understanding" of the executive branch has changed and that "society" now demands a new view of this which some judge should just validate? Are John Yoo's views on the executive now "societies" views?
Well, my understanding of homosexuality as a natural phenomenon happens to be objectively true, which cannot but aid the people paid and trained to discern objective truth as applied to law, ie "judges." Others have different beliefs, but they're just plain wrong. See my earlier ranting about conservatives and objective reality for more on this.
If you object to that, then you are objecting to the principle of a judicial branch run by such people at all. You wish to leave all governing of society to mere majoritarian impulses. Tyranny of the majority as it were. If it is objectively unjust to deny a group a right, why should we wait for the majority to be on board with that, particularly when the majority will never share that need? (ie we'll probably never have a homosexual numerical majority). Also, why have a constitution under such a system? The only point of writing down core rules not to be broached is lost if there is no one able to enforce those rules. The constitution would have as much legal effect as the 10 commandments under such a system.
Classic liberal governance of the Locke variety says that rights are rights, and that's why we empowered justices to strike down laws passed by popular majorities. You may call it "activism" but it is still distinct from the type of "activism" which mangles law and reason to foster ideological ends. The ruling makes consistent sense based on the understanding of what gays are. Too many of these glaringly bad conservative rulings cannot say the same.
And yes it might seem symmetrical that the left complains about judicial ruling they don't like, but that symmetry is not equivalence even if it does lend itself to such claims. My mirror double is not the same as me, and two people accusing each other of lying are not necessarily equally wrong. Sometimes, just one person is wrong, and it takes someone able to discern objective reality to decide which.
(None of this is to say such failings are confined solely to the right and absent in the left of course. But by and large I assert this is so. Nor is the truth "in the middle" as a rule.)