Apparently, Justice Joyce L. Kennard dissented from the other judges of the California Supreme Court and voted against hearing the law suits filed after Prop 8 passed. What is unusual in this case, is that Justice Kennard has traditionally voted in favor of so-called gay rights. Her vote not to hear the law suits surprises the gay community and the attorneys who are fighting for them.
As the LA Times writes:
"It definitely isn't a good sign," said UCLA Law Professor Brad Sears, an expert on sexual-orientation law.
Although it is impossible to know Kennard's thinking -- justices cannot comment on pending cases -- others saw reason to suspect that Kennard may not be buying the argument that Proposition 8 was an improper revision of the state constitution.
The order said Kennard would hear a new case to resolve the validity of the 18,000 same-sex marriages "without prejudice" -- a phrase that indicates she was open to arguments on the issue. But she declined to modify her denial of the Proposition 8 challenges with those same words.
"What she seems to be saying is that she doesn't think it is worth reviewing," said UC Berkeley Law Professor Jesse H. Choper.
Here's the Problem
The courts have too much power over the democratic process and are a fickle means of accomplishing democratic ideals.
During the 1950s and 60s, the civil rights movement found a sympathetic ear in the courts in order to abolish bad laws and precedents. Blacks in this country lacked equal access to jobs, housing, and education. As more and more ideas of democracy were questioned and brought to the courts to fix, the courts gained power not only to declare laws unconstitutional, but also to define what civil rights were. As the courts created more judgments, the Constitution of the US itself became a fluid document, coming to mean all sorts of things the courts said it was.
In Roe v. Wade, the courts defined the right of women to have an abortion, opening up the way so aborting babies could become as commonplace as throwing out the garbage. So a civil right of abortion was created, a right apparently missed in the US Constitution.
More recently, the California Supreme Court threw out as unconstitutional, a law passed by a majority of Californians, declaring that marriage was defined between a man and a woman. The majority opinion created a new "fundamental constitutional right to form a family relationship" a right apparently also missed in the California or US constitutions.
Now, one of the left-leaning judges in the California Supreme Court has indicated that the suits brought up after Prop 8 passed have no merit. The gay activists are suddenly worried. The courts that originally upheld just about any claim to civil rights now looks to not be a slam dunk in favor of gay rights.
The gay activists enjoyed a period of support in the courts, against any and all democratically placed laws or interpretations of marriage. Now that the activists have hit a snag, they are faced with the dilemma that they helped create: handing power to a few elite individuals who control the courts in the US. Those elite judges may or may not do what anyone wants them to do. They have been handed power to interpret the Constitution the way they want to with no regard to consequences, legal or otherwise. Now, even the gay community can't be sure of the judges they thought were in their pocket.
Relying on the courts to give good judgments anymore is a double edged sword. The people in California are about to get a dose of the Supreme Court Crapshoot. Neither side has any idea what the court will do. I find disturbing this lack of consistency with judges and reliance on the courts to solve all our problems. Let's not hand judges any more power to mess up the system than they already have.
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