Recently, a Florida judge struck down the ban on gay adoption. This is what certain folks would call "legislating from the bench." So what do you think folks? Legislating from the bench good or bad?
Well, I tell ye what I think. You are not all sane and rational people, much as I love you. You are not all fair, and you are not all just. Judges on the other hands are supposed to be masters of jurisprudence. I don't disagree with anyone that adopted children shouldn't be given to bad parents, but you'll have a hard time convincing me that a loving gay couple is worse than a totally screwed up straight couple. If you want to legislate bad parenting well—that's a whole kettle o' worms. We literally can't open it. There's nothing constitutional about that.
That American rights need protection from the masses is in a sense antithetical to the whole American idea. On the other hand, it's also exactly appropriate. We are not, as smartypants readers point out to me constantly, a true democracy but a representative one. The idea that those we've elected do not have the right to make these kinds of major decisions is not something we are habitually against UNTIL we come across something we personally disagree with. So what do we do?
I think that by choosing to have an executive, we fundamentally have made the decision to be ruled by the leaders we elect, even in matters that do not have whole public support. There are, obviously, so many shades of gray to this it's hardly worth talking about. But what ARE judges for if not to decide what is justified, and what is not; if not to make the distinction between what is bothersome and what should be illegal (they are NOT the same).
We all know I come down on the side of gay rights, so I won't even enter whether I think this judgment was fair or not. The question here is whether it's alright if judges make those decisions for us. In my mind it's almost a just payback---the last executive branch took us into and kept us in an unpopular war. That was their right, apparently. And those same folks clamor against similar shanghaiing by more liberal governmental types.
But frankly it's not enough to say it's fair because turnabout is fair play. I think it's fair because we elect a government to defend us against our own worse tendencies. That's the point of government, otherwise anarchy would be the best choice.
No choice is a perfect choice, but I do not know who would be a better choice to legislate than our duly elected judges, whose qualifications demand knowledge of our laws and our constitution. If we have to rest on someone's judgment, I'd rather them than you. Sorry...
For that very same reason I *don't* want judges legislating from the bench. Experts are very dangerous in the field of law and justice. They may have good-on-paper ideas, but the people are more likely to work better under bad ideas they choose than good ideas they don't. Government is not supposed to be about fairness; it's supposed to be about justice.
That said, I don't think gay adoption is legislating from the bench. It's willing parties voluntarily entering a contract for a legal purpose, which is a right. Same thing with civil unions. Gay *marriage* OTOH, because of the semantics, is legislating from the bench. It's a matter for the people of the states to decide if gay union is semantically equal to hetero union. All people have the right to equal treatment under the law. They do not have the right to equal treatment by private citizens.
Posted By: Paul from ForF wks 8/25/67 (Registered) on November 29, 2008 at 05:28 PM
Legislating from the bench: Any ruling Republicans disagree with. Any time I hear that phrase invoked I dismiss it since talking points like it are spouted by those with nothing meaningful to say.
Paul: You stated willing parties have the right to enter a legal contract, and that's exactly what marriage is. The ONLY difference is the gender of the participants, and any meaning attached to that is done by private citizens who are not participants and thus are not affected. No legal contract requires an affirmative vote by non-participants, so a ban on gay marriage flies in the face of how our legal system is constructed. That's why referendums are not legally binding, and why they are called "Proposition 8" instead of "Bill 8".
Posted By: Shockmaster (Guest) on November 30, 2008 at 08:39 AM
In my opinion, legislating from the bench would be the judge acting contrary to the law for his own personal reasons without a constitutional basis for doing so.
If a judge can write a rational opinion saying "Gay adoption, for X, Y, and Z reasons, conflicts with these the superseding laws, precedents, or policies of A, B, and C, and is therefore unconstitutional" that is completely within the scope of their power, and it can be appealed to the Supreme Court of the United States to see if it was indeed good law or the judge mistakenly applying the law.
Also, judges are either elected or appointed. If you don't like them, don't re-elect them. If they're appointed and you don't like that they're doing, then you take it out on who appointed them by not re-electing that person. That's what we get for having a representative democracy. We choose people to make decisions for us or to pick other people to make decisions for us. If we don't like that, then we need to change the system of government.
Posted By: Manbearpig (Guest) on November 30, 2008 at 03:11 PM
Upholding the Constitution isn't legislating from the bench. No one can come up with any reason why gay people can't have the same rights as straight people so they say "leave it to the voters." Then the issue is turned into "adding" rights instead of "upholding" rights by those against gay rights. Unconstitutional laws passed by voters should be overturned.
Posted By: Rook (Guest) on November 30, 2008 at 03:44 PM
Like the saying goes, if you don't like gay marriage, don't get one. If you don't agree with abortion, don't get one. It's as simple as that. There's a whole segment of this country that in every generation, fights to restrict the rights of others just out of some holier-than-thou moralism.
Fact of the matter is, these issues will not go away and will eventually cease to be debates, and they WILL pass. The same civil rights did. The same way women's suffrage did. The fight by the hateful, moralist autocrats on the right is ultimately futile.
Posted By: John Goozie (Guest) on November 30, 2008 at 04:05 PM
STAY CURRENT