Legislating From the Bench

This is a very common quip from those on the right, usually following any ruling involving something to do with gay rights*. And it’s a great case of crying wolf.

I was under the impression that by having three branches of government, the executive, legislative, and judicial, rights would thus be guaranteed and defended one way or another. If one branch overstepped its bounds, or in the infamous cases of institutional racial discrimination, for example, a branch or governmental institution never really came around to recognizing the rights of an entire class of citizens, that one of the branches would use its unique powers to extend/enumerate rights.

Now, I’m not one to say that a judge can decide flim-flam that because blacks were once enslaved, specific monetary reparations must now be payed out by whites; or that, because a church is excluded from most taxation, therefore it must conform to prevailing standards of social inclusion.

On the other hand, every time a ruling is found in favor of gays–from the seemingly harmless (a state government cannot discriminate solely on the basis of sexual orientation, along with disability, race, gender, veteran status, etc.) to the more controversial (marriage must be extended to gays because 1. they are legitimate couples and must be afforded the full rights associated with government-recognized marriage, and 2. there is no compelling legal argument to suggest they should not be afforded the right to marry)–the usual suspects claim judicial activism, or that California judges are writing laws/legislating from the bench.

No one on the right bats an eye when a city’s gun ban is overturned (nor should they); and few even protest injunctions against Phelps-types “protesting” at military funerals (nor should they in that case, either).

But gays shouldn’t be discriminated against in military recruitment? The right to civilly marry? Well, now the judges are opening the gates for free sex-change counseling in Kindergarten, and teaching boy scouts fisting!

…or, now the judges are legislating from the bench.

I believe that in the case of Prop. 8, it’s a bit disappointing that the state is not defending the law as vigorously as it can, because I believe in all cases (yes, even those involving accused terrorists!) there ought to be strong legal cases made by both parties.

But is finding that gays are discriminated against, when, well, they are: is that really legislating from the bench? Or are the critics applying their personal moral judgment of homosexuality to politics, and thus crying wolf?

Let’s just be careful in this distinction. Oftentimes, it’s all too predictable.

*Usually derisively referred to as gay “rights.”


Also posted at 20/10 Blog.