Volume II, Number 2 Front Page
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March 31, 2005

To Speak Out Against Activist Judges Misses the Point

Daniel Riehs

      The recent ruling in California stating that marriage cannot be denied to same-sex couples under the State Constitution once again brings up an ongoing argument about the role of judges in governmental decision-making.

      Judge Richard Kramer of the San Francisco County Superior Court wrote that, “It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners.” He said that to do so would violate the state’s equal-protection clause of its constitution. Moreover, he said that the state could not continue to deny marriage rights to homosexuals simply because that was the way that it had always been done.

      Judge Kramer made his decision in response to several dozen lawsuits filed, following the nullification of 4000 same-sex marriages that occurred in San Francisco in early-2004. Since the marriages were originally nullified to comply with a voter-supported law defining marriage as a union between a man and a woman, it would seem that the decision to allow same-sex marriage would go against the wills of the majority of California voters. How than, can same-sex marriage be justified if most Californians do not want it to be legal?

      The answer seems to found in the original purpose of equal-protection clauses. Recently, people have been quick to persecute “activist judges” who go against the majority will of the people and make decisions on their own. What is not realized about these decisions is the fact that equal-protection clauses exist to protect the rights of minorities from the will of majorities. To say that gays should be denied the right to marry because the majority of people in the state do not want them to be able to marry misses the point. While democratic ideals and the rule of the majority work most of the time, individual rights sometimes need to be protected from democracy through decisions such as this one.

      The California ruling will be appealed, but if it is upheld, California will become only the second US state to legalize gay marriage.

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