Monkey on the Judiciary

A Kung Fu Monkey, that is. (Although I certainly hope that subject header evoked images of a chimp humping Scalia’s leg.)

After astutely pointing out that Judge Kramer’s decision on gay marriage in California is not, in fact subverting the way America is supposed to work, but indeed is indicative of the system working exactly as the Founding Fathers designed it to work, KFM offers an interesting insight about so-called “activist judges” versus the numbers:

As of this month, going by the latest Quinnipac and CBS polls, recognition of SOME sort of legal agreement between gays comes in around 45-50% now -- using the word "marriage" changes the numbers considerably, showing again the power of semantics. More tellingly, support for a Constitutional Amendment banning even marriage (the hot button word getting the biggest negative response) barely clears 40% in most polls. What does this indicate? What opposition there is, it's not as deep as it is broad. So, while one can argue either side of the issue, it's not so far out in the land of bizarre-o that the courts are breaking basic social construct by tackling the issue.

However ...

... when the Supreme Court struck down the bans against interracial marriage in 1968 through Virginia vs. Loving, SEVENTY-TWO PERCENT of Americans were against interracial marriage. As a matter of fact, approval of interracial marriage in the US didn't cross the positive threshold until -- sweet God – 1991.

Damn activist judges, eh?

And what, I wonder, are the odds that approval of interracial marriage in the US would have crossed that threshold even by so late a date if it had been indefinitely allowed to remain a criminal act?

Sometimes the stragglers at the tail end of the slow march of progress need a boot to get them moving forward again. When the legislature won’t provide it, it’s the judiciary’s job to deliver it instead. Marginalized groups were never meant to have no recourse against discriminatory practices, particularly those so woefully devoid of legal standing, even if the will of the majority is to extend the codified biases in perpetuity. Just because something is popular doesn’t make it right.