I keep seeing arguments against Judge Vaughn Walker's opinion in the case of Perry v. Schwarzenegger, the Federal court case contesting California's Proposition 8. As I expected, the fact that Judge Walker is gay figures in a lot of the arguments, and probably he should have recused himself, but it is still a good decision which I hope will prevail when it gets to the Supreme Court.
The usual argument against Judge Walker's decision, though, has to do with judicial activism; the people voted to pass Prop. 8, the people should be sovereign, thus Prop. 8 should be allowed to let stand. But suppose this was a case involving segregation in Mississippi in the 1950s. Does anyone believe that the Mississippi voters would not have voted, by a much greater majority than the California voters approved Prop. 8, to retain segregation? And does anyone believe that that vote should have been allowed to stand if it had been taken? Well, where is the difference? There are racists who even today would like to see segregation, but fortunately the courts have ruled decisively in ways that make it impossible for them to get their way. And there are homophobic bigots who so far have succeeded in preventing gay people from having the same rights as straights in most states and in Federal law, and it seems that only court action will make it impossible for them to continue to get their way. I suppose this is judicial activism, but it is the kind of activism that brought about racial equality in the past, and hopefully will bring about equality between sexual orientation categories in the future. This kind of judicial activism we need.
The usual argument against Judge Walker's decision, though, has to do with judicial activism; the people voted to pass Prop. 8, the people should be sovereign, thus Prop. 8 should be allowed to let stand. But suppose this was a case involving segregation in Mississippi in the 1950s. Does anyone believe that the Mississippi voters would not have voted, by a much greater majority than the California voters approved Prop. 8, to retain segregation? And does anyone believe that that vote should have been allowed to stand if it had been taken? Well, where is the difference? There are racists who even today would like to see segregation, but fortunately the courts have ruled decisively in ways that make it impossible for them to get their way. And there are homophobic bigots who so far have succeeded in preventing gay people from having the same rights as straights in most states and in Federal law, and it seems that only court action will make it impossible for them to continue to get their way. I suppose this is judicial activism, but it is the kind of activism that brought about racial equality in the past, and hopefully will bring about equality between sexual orientation categories in the future. This kind of judicial activism we need.
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