{"id":665,"date":"2004-03-03T03:46:58","date_gmt":"2004-03-03T11:46:58","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2004\/03\/03\/a-quick-note-on-judicial-fiat\/"},"modified":"2004-03-03T03:46:58","modified_gmt":"2004-03-03T11:46:58","slug":"a-quick-note-on-judicial-fiat","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=665","title":{"rendered":"A Quick Note on Judicial Fiat"},"content":{"rendered":"

In a post I also quoted in my previous blog entry, Eugene Volokh <\/a>writes:<\/p>\n

These arguments aren’t strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.<\/div>\n

It’s unclear from this if Professor Volokh also objects to the Goodridge ruling in Massachusetts (since those judges weren’t federal) – but even if he doesn’t, many other folks have, on grounds similar to those suggested by the Professor here. Although legal equality is a noble goal, it should happen through the normal democratic process, not through judicial rulings.<\/p>\n

I’m sympathetic to this – ideally, all changes would happen through respectful debate in the marketplace of ideas, which would lead citizens to band together behind the stronger idea.<\/p>\n

Nonetheless, that’s not exactly how things are happening. So what should judges do? Suppose for a moment that the four Goodridge judges were acting in good faith. To the best of their understanding of the Massachusetts Constitution, the state may not discriminate against same-sex couples when issuing marriage licenses.<\/p>\n

What then?<\/p>\n

I’m not sure that I like the idea of judges saying, “well, in the best understanding of the law I can muster, equal protection means that marriage discrimination of this sort is unconstitutional. But it’s wrong for changes like this to come from the bench. Therefore, I’m going to vote to support a law I believe is legally unconstitutional.”<\/p>\n

Maybe this is overly idealistic of me, but I’d prefer judges to decide what is constitutional based solely on their good-faith understanding of the law and the Constitution. To make Constitutional decisions based on anything else seems, somehow, to be stepping outside the bounds of a judge’s proper role.<\/p>\n

Nonetheless – if we assume that the Goodridge judges acted in good faith – that’s the sort of decision-making process that many of their critics must be advocating..<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

In a post I also quoted in my previous blog entry, Eugene Volokh writes: These arguments aren’t strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not … 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-665","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\/665","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=665"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/665\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=665"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=665"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=665"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}