Friday, 16 May 2008
California Same Sex Marriage Ruling
Note that all these cases in which judges, bit by bit, dictate their designer society can be spun as questions of liberty.  In Casey, the Supreme Court told us (in what Justice Scalia aptly mocked as the sweet-mystery-of-life passage):  “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  If that's the "rationale" they are applying, is there anything the judges can't impose on us if they put their minds to it?
Posted on 05/16/2008 5:12 PM by Andy McCarthy
16 May 2008
John M. J.

Dear Mr. McCarthy,

Do I take it that you are against gay rights or is that a crude misrepresentation of your stance and that you are in fact against law made by judges and the legal system as opposed to law made by the duly elected legislatures. The problem, as I see it, is that those who legislate can often be bound by the irrational prejudices of the electors.

Does it really matter that the Californian legal body has openly stated that sexual orientation is irrelevant when it comes to equality before the law? Surely, whomsoever a man, or woman, chooses (or is, by nature, compelled to select) as a bed-partner, should not be a basis for legal discrimination and this should be just as welcome as such a body stating, as I believe that they did, that the skin-colour of any individual Californian is also irrelevant.

If you object to judges and the legal heirarchy making law then I would remind you that so often the independent judiciary in many of our Western democracies have very often safeguarded our rights as individuals against the depredations of government and the ignorance of the general population. Gay people will, no doubt, feel that the Bench in California, has done just that - placed them equal before the law. That, surely, is not an unreasonable request.

But, and but, I, like you, am uncomfortable with judges seeming to make law at variance with the perceived, but maybe wrongly perceived, will of the people. Certainly, I believe that all people, including gay people, should be equal before the law, but I acknowledge that there are many in our society who do not believe that gay people should be so equal. I would prefer that gay people, people such as I, won the battle for hearts and minds and then asked for changes in the law rather than relying on the judiciary to grant our manifest rights. With no popular support our rights are likely to be evanescent and prejudicial to the future positions of gay people.

However, it has to be admitted, there are occassions on which, and this could be such a happening, when judicial rulings cause a sea-change in public perception. We have to remember that there are five pillars of government - the legislature, the independent judiciary, the independent but law-driven civil regulatory forces, the military and the electors. One of those pillars stating a truth as it sees it may alter the perception of truth and fact for all the others.

Oh, and this can be spun as a question of liberty. Not, perhaps, the question of liberty you see and which you would seek to address here, but, nonetheless, a question about the liberty, and liberties, of free and autonomous citizens. The concept of free and autonomous citizens is one which I shall address in one of my future essays at this site but, it would appear at this moment, is not one that you particularly understand in the context which you have sought to address in your short posted paragraph here.

It strikes me that you are merely using this ruling about gay relationships to highlight a much more important point - that the judiciary sometimes has to make law, on the hoof as it were, in response to a fast changing society - without regard to the fact that that offends large numbers of decent, law abiding, gay citizens by you so doing, Why should we always have to be the scapegoat? Could you not have found a better ruling on some less controversial topic to illustrate your argument.

I'm left with the feeling, undoubtedly just a feeling and one, what-is-more, which probably has no validity, that you don't like gay people and you don't want us to have equality before the law. I'm sure that that is wrong and that you didn't even stop to consider the hurtful nature and the harmful effects of your one brief and unexplained paragraph posted here and that your argument is, more than probably, about judges making law. If it is, then rest consoled by the fact that I, a gay person, also have deep concerns about that - but you might have phrased your concerns in a more politic and polite way and without playing upon the hatred of gay people which exists in our societies!


John M. Joyce.

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