Activist judges

That’s the label various right-wingers are hurling at the judge who overturned Prop. 8 this month, along with “judicial fiat … usurpation of democratic authority … raw judicial power” (Roy Edroso provides an overview here). While some of them are horrified at the concept of gay marriage, others insist it’s merely this tyrannical judge tromping over the will of the people that they’re concerned about.
And certainly that’s the point they made a couple of years back, when the first judicial rulings in favor of gay marriage came in. This wasn’t an appropriate decision for a court to make: Let the legislators, the representatives of the people do it!
Then various legislatures did it. And the response was not to acknowledge that the government had followed proper procedure but to denounce the decision as a defiance of the popular will. The majority oppose gay marriage—the majority must have its way! And so we get things like Prop. 8.
Curiously, when legislatures or judges reject gay marriage, or Congress passes something like the Defense of Marriage Act, there’s no huge outcry for a popular vote. Why, it’s almost like the procedural complaints are just an excuse for anti-gay bigotry!
Which is why, when some Prop 8 style measure fails down the road, or a pro-gay Prop succeeds, we won’t hear the right wingers bowing to the will of the people. Instead they’ll be screaming about how minority rights must be protected and gay marriage is a direct threat to their First Amendment rights: Churches will be forced to marry gays and anti-gay activists will be forced to keep silent! The government must protect them!
Heck, they’re playing that song already. The fact that nobody stops Fred Phelps from preaching and denouncing gays as damned to Hell doesn’t seem to change their mind (or tactics, depending how insincere they are).
The next time they try to pretend this is all about their devotion to the procedural requirements for good governance remember, they’re full of baloney.