{"id":633,"date":"2004-02-23T12:26:04","date_gmt":"2004-02-23T20:26:04","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2004\/02\/23\/same-sex-marriage-the-courts-and-the-mayor-a-response-to-david-blankenhorn\/"},"modified":"2004-02-23T12:26:04","modified_gmt":"2004-02-23T20:26:04","slug":"same-sex-marriage-the-courts-and-the-mayor-a-response-to-david-blankenhorn","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=633","title":{"rendered":"Same-sex marriage, the courts, and the mayor: A response to David Blankenhorn"},"content":{"rendered":"

David Blankenhorn objects <\/a>to the Massachusetts Supreme Court’s “hardly disguised contempt for the views of most citizens of the commonwealth.” He feels that the Court has displayed a ” wanton disregard for democratic procedures.” This is a pretty common statement among opponents of same-sex marriage (SSM), which leads me to wonder: what do they think the proper role of the courts should be, in regards to individual constitutional rights?<\/p>\n

David seems to think that it’s wrong for a court to go against majority opinion, or the legislature, on matters of individual rights. But this is bewildering. Surely David wouldn’t actually require the Court to take polls of the populace and then base their opinions of what the Constitution means solely on what the majority would prefer. But assuming that David doesn’t favor poll-driven court decisions, why exactly does he want the court to do when their good-faith interpretation of the constitution disagrees with popular sentiment?<\/p>\n

I tend to agree more with Trivial Pursuits<\/a>, who writes:<\/p>\n

I think the entire point of the judiciary is at some deep level of abstraction, that it be anti-democratic. I think there is ample historical evidence that the Framers intended the judiciary to act as a check on majoritarian excesses. This explains why I am unsympathetic to all the keening and wailing that goes on with respect to ‘judicial activism,’ and ‘anti-democratic judges.’<\/p>\n

Judges, if they are doing their jobs, IMO, are the watchguards, the curbs against tyranny of the majority.<\/p><\/div>\n

It the judiciary is required to go along with whatever the legislature and the polls say, then I don’t see the point in having a judiciary at all. Or in having a bill of rights, for that matter. Who needs a first amendment? Next time a free-speech controversy comes up, we\u2019ll just take a poll.<\/p>\n

* * *<\/p>\n

David also sees democracy at peril in San Francisco<\/a>:<\/p>\n

If the mayor believes that the law is wrong, he should campaign politically to have it changed. If enforcing the current law is morally impossible for him, he should resign his office and join his brothers and sisters in civil disobedience. But he can’t have it both ways. In a free society, it is completely morally unacceptable for an official who is sworn to uphold the laws to pick and choose which laws to enforce, and which openly to violate, all while seeking to remain as an official.<\/div>\n

But the case isn’t as simple as David describes. The Mayor has argued that two California laws – the constitutional call for equal protection, and the statute defining marriage – are contradictory. Since he perceives a contradiction, the Mayor must <\/i>“pick and choose which law to enforce”; it’s not possible to enforce both laws at once. Under such circumstances, it’s perfectly reasonable for the Mayor to decide that his duty is to obey the Constitution, first and foremost. (See Eugene Volokh <\/a>for a more developed version of this argument).<\/p>\n

(Suppose that, on Election Day morning, the legislature voted to deny blacks the right to vote. During the several hours it might take to get the judicial bureaucracy into motion to stay or repeal the new law, thousands of blacks would be turned away from the polls, potentially changing the election’s outcome. In that situation, does David believe that the Mayor is bound to obey the legislature, or should he instead obey the constitution?)<\/p>\n

What if he or some other mayor had decided last week to hand out firearms to NRA members in violation of gun laws? Or to arrest doctors who provide abortions in violation of abortion laws?<\/div>\n

If the mayor felt that state anti-gun laws violated the state constitution, then he would have been perfectly within his rights to create a test case by refusing to obey the (in his view) unconstitutional law. He could also arrest doctors, although in that case the judiciary – seeing a clear and immediate harm – would step in and stop him much, much sooner.<\/p>\n

And the judges who have failed so far to act to stop his actions<\/a> on the grounds of “no immediate harm” are clearly letting politics trump their duty as judges.<\/div>\n

Or perhaps they are interpreting the law in good faith as they see it..<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

David Blankenhorn objects to the Massachusetts Supreme Court’s “hardly disguised contempt for the views of most citizens of the commonwealth.” He feels that the Court has displayed a ” wanton disregard for democratic procedures.” This is a pretty common statement … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[112],"tags":[],"class_list":["post-633","post","type-post","status-publish","format-standard","hentry","category-same-sex-marriage"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/633","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=633"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/633\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=633"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=633"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=633"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}