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Undemocratic, at least |
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This is the problem with America's activist, out-of-control justice system, where judges (and
prosecutors) seem to so often behave like demi-gods. The fact that this reality is reflected within
the Supreme Court is, of course, not surprising. Although I support the legalization of same-sex
marriage, I also believe that if a society feels that it is not ready to accept it and they express
this opinion in a referendum, then the highest courts in the land are in no position to overturn
this judgment; at least not in a democracy. My main problem with this approach is that judges seem
to think that they know best, and are willing to ignore the will of the voting public, thus treating
them like little children who are not mature enough to make their own decisions.
The only way to solve this problem is to throw a bucket of cold water on the Supreme Court judges,
by giving elected officials the power to ignore decisions rendered by these courts. This effectively
means that if the court compels California to legalize same-sex marriage, then the government should
have the power to invoke a notwithstanding clause, which would allow it to temporarily delay
legalization. This means that the government would still eventually have to face the issue of same
sex marriage, but it would be given a reprieve of five to seven years, by which time public opinion
may also change. If not, then it would have the power to delay a final decision on the matter yet
again. |
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The fundamental idea of the Supreme Court, that a bunch of unelected judges should be able to make
sweeping decisions which affect the lives of a country's citizens in fundamental ways, is wrong. If
the rights were precisely enumerated, and the judges contented themselves with implementing them in
practice, there might be no harm in it. History shows that they do not do this, however. They take
ambiguous phrases and grotesquely distort their meaning to apply to circumstances which can never
have been intended by the legislators who originally passed them. The Supreme court awarding the
2000 election to Bush is one particularly gross example of this.
This is not to say that the decisions they arrive at always have adverse effects. For example, I
approve of the effects of the Roe vs Wade decision which granted women the right to have abortions.
But look at the way it was arrived at. The decision was based on a highly idiosyncratic
interpretation of the ninth amendment. The freedom of American women to have abortions should not be
hanging on such a shoogly peg.
Attempts to restrict corporate lobbying and interference in politics have been struck down on the
basis that corporations are people and therefore have the right to free speech and that giving money
is the equivalent of speech.
It also encourages irresponsibility in politicians. They know that the Supreme Court is there to act
as a bulwark on certain issues, so they feel free to indulge their demagogic tendencies, posturing
on certain issues, knowing they will never have to confront the practical consequences of their
posture turning into policy. |
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I have a real hard time with this. I am gay, and i am for gay marriage, but i don't believe the
Supreme Court should legislate. It is not their function to make law, but to interpret law.
However, the real question is, is marriage a civil right that gays and lesbians should be excluded
from. Then the question goes to what is the definition of marriage, because no one is denying gays
and lesbians marriage, just not to each other. So the definition of marriage needs to be looked at.
Is it a man and a woman or is it something more or different? Does the acceptance of a class of
people by society, which was previously not accepted, permit the definition of marriage to
change?
To me, Yes. |
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31 May 2008 01:29
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