Gay marriage, the courts, and the Cherokee precedent

Certainly best to have it done by a state judge instead a federal one. Was the judge plugged into the establishment. Did this decision meet strong resistence from the legislature. I am all for activists judges, especially when the action taken will be enforced. I was just making the arguement for the constitutional republican view and demonstrating the possibility that changes in local mores brought from the ground up may be more effective. Suppose this judge had made the same decision in the Tennessee of 1920. when the public and legislature would likely have overturned the decision .

Tennessee has come a long way since then along with the rest of the country.

Sure it's better to have a positive change occur in a manner consistent with federalism than otherwise. And it's better to have this positive change implemented by a state legislature than by a judge, and better yet to have it done by a vote of the people. But I'll take a positive judicial decision, even one by a federal judge who has no constitutional jurisdiction over that particular issue, over no change at all.

  The chief consideration in making a public policy decision, imho, should not be "Is this the proper jurisdiction for this question," or "Is my decision likely to be overturned or not enforced if I vote my conscience," but rather "what is the morally correct position on this topic?" There will always be some pragmatic or legal rationalization for not doing the right thing.

Love & liberty,
      <<< starchild >>>

Was the judge plugged into the establishment. Did this decision meet

strong

resistence from the legislature.

Still huge resistance to this day. Even though the state's sodomy law
has been ruled unconstitutional and unenforceable by the state supreme
court (and now US supreme court), every time a bill is brought forward
to remove the law from the books, it's voted down "to send a message".
It wasn't a single judge, but rather the entire state supreme court
that struck down the sodomy law -- just like the "activist judges"
here in Massachusetts that overrode the legislature by saying the ban
on same-sex marriage was unconstitutional.

Suppose this judge had made the same decision in the Tennessee
of 1920. when the public and legislature would likely have

overturned the

decision .

I've not yet heard of a state supreme court whose decisions were
unenforceable. Could you provide an example? It seems to always take
an amendment to the state's constitution to change a supreme court
ruling, and of course the supreme court changes its ruling to match
the new constitution -- it's not really being overturned.

Regardless, Tennessee and the South in general have a long history of
the courts leading the charge to equality under the law for all
people. I simply reject the argument that the courts must act as a
rubber stamp on the legislature and executive branches. If courts
aren't there to rule actions by democratically elected legislatures
and executives unconstitutional, then why does the judicial branch
even exist?

If you've not yet read it, check out this article in Reason magazine
calling for libertarians to support judicial activism:

I saw a mini series on the US Supreme Court several months ago on PBS
that basically said the same thing -- that "property rights" were the
first example of "judicial activism" on the Supreme Court. And we
libertarians should be thankful for that. (Though, of course, the PBS
thing was slanted to say that there's no such thing as property rights
and that such judicial activism was an abuse of power by SCOTUS.)

Anyway, I'd say libertarians, as well as fiscal conservatives who
believe in property rights, should get off of the social
conservatives' anti-judicial-activism bandwagon. Especially in a day
when the President and Congress ignore the Constitution on a daily
basis, a very strong judicial branch is a vital check and balance to
protect liberty. If anything, a couple decades of partisan SCOTUS
appointments have made the court too timid and not "activist" enough.

Rob

Rob

    Certainly best to have it done by a state judge instead a

federal one.

Was the judge plugged into the establishment. Did this decision meet

strong

resistence from the legislature. I am all for activists judges,

especially

when the action taken will be enforced. I was just making the

arguement

for the constitutional republican view and demonstrating the

possibility

that changes in local mores brought from the ground up may be more
effective. Suppose this judge had made the same decision in the

Tennessee

of 1920. when the public and legislature would likely have

overturned the

decision .

Tennessee has come a long way since then along with the rest of the

country.

From: "Rob" <robpower@...>
To: <lpsf-discuss@yahoogroups.com>
Sent: Tuesday, March 27, 2007 9:46 AM
Subject: [lpsf-discuss] Re: Gay marriage, the courts, and the Cherokee
precedent

>>
>> Have you ever lived in the South, or for that matter Redding,
> California. Using the courts to do what the legislature should do ,
> especially state by state, may feel good, but it does not change
> minds. It invites serious , often violent resistence.
>
> I'm from Tennessee. Our own "activist judges" in the state supreme
> court didn't overturn the state's sodomy law until 1996. I was a
> college sophomore, just barely creaking the closet door open.
>
> I was also in student government at the University of Tennessee at the
> time. The student senate voted earlier that year to support an
> amendment of the University's nondiscrimination policy to include
> sexual orientation. The student government president vetoed the
> resolution, under the advice of university administrators, based on
> the state's sodomy law.
>
> In 1997, after the state's sodomy law was overturned by "activist
> judges," on the state supreme court, the student government finally
> passed and submitted to administrators an inclusive nondiscrimination
> policy. The administration didn't change the policy (still hasn't,
> ten years later, in fact). But at least that one stupid argument for
> continuing to discriminate against gay taxpayers in a taxpayer-funded
> institution had evaporated. And a whole new generation of leaders in
> the state recognized that government discrimination on the basis of
> sexual orientation was wrong. It may take ten or twenty years for
> that effect to be felt, but let's not deny that it did most certainly
> have a positive effect.
>
> Thank goodness for "activist judges," I say. Especially in the South.
>
>
>
>
> Yahoo! Groups Links
>
>
>
>
>
> --
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3/26/2007

I may agree with you to a point, but what you're saying here essentially puts zero value on following the rule of law. How can any country's legal system survive if everybody follows their own personal moral beliefs instead of the law when making decisions? All it takes is one person in power following his own anti-liberty beliefs about the morally correct thing to do, and we'll have a dictatorship.

Jeremy