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Refusal to stay ruling isn’t ‘judicial activism’

By Josh Richman
Wednesday, June 4th, 2008 at 2:46 pm in General, same-sex marriage.

Y’know what bugs me? People who don’t understand, or deliberately ignore, how our government is supposed to work.

The California Supreme Court this morning declined to review or stay its May 15 decision to overturn the state’s statutory ban on same-sex marriage. Conservative groups had wanted the ruling stayed until after California votes in November on a proposed constitutional same-sex marriage ban, which would render the court’s ruling moot; instead, same-sex marriages now are set to begin all over the state June 17.

staver.jpgLiberty Counsel, the Florida-based, conservative public-interest law firm which had represented the Campaign for California Families in supporting the ban, promptly issued a news release this morning under the subject line “California Supreme Courts Denial of Stay Ignores the Will of the People.”

“Denying a stay in light of the certification of the Marriage Protection Act for the November ballot reveals the political agenda of a handful of judges,” Liberty Counsel founder Mat Staver wrote in this release. “Judges acting as judges and not as legislators would have granted the stay.”

The Arizona-based Alliance Defense Fund, which had represented the Proposition 22 Legal Defense and Education Fund in the case, followed soon behind.

lavy.bmp“The Court has not only ignored the will of the people and imposed a redefinition of marriage on Californians, it has inflicted years of legal chaos quite possibly on the entire country,” ADF Senior Counsel Glen Lavy said in a news release. “This decision is the most egregious case of judicial activism in modern American history. The refusal to wait for the people decide by the constitutional process confirms that.”

But courts aren’t supposed to bend to “the will of the people” — their job is to interpret and enforce constitutions and laws. They’re not supposed to consider public-opinion polls, or elections not yet held, or anything like that when making rulings. The other branches of government are supposed to represent the people’s will; the judicial branch is supposed to uphold the rule of law.

So, in fact, what Staver and Lavy seem to be complaining about is an absence of judicial activism; the high court’s justices have declined to be arbiters of public opinion, and chose instead to do their job and stand by it.

Staver and Lavy and their clients lost their case, pure and simple. California voters will have the chance to address the issues at the ballot box in November, pure and simple. In the interim, the state constittution as it stands today will be enforced as it has been interpreted in accordance with our system of government. The system is working exactly as it’s meant to work.

If I had to guess, I’d say Staver and Lavy know that perfectly well, but find it easier to raise a hue and cry about “judicial activism” than to admit you made your best argument and lost. And I suspect they’re upset less about the “chaos” that will ensue should same-sex marriages occur before voters have a chance to ban them constitutionally, and more about the public sympathy and support photos and stories of such marriages might build for defeating that ban.

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