The Will Of The People

As you hear the again-crazed Authoritario-Religious Right complain about the California Gay Marriage Decision, you will here about Unelected, Activist Democratic Justices Legislating From The Bench.

But remember these facts:

UNELECTED: All seven members of the California court have been confirmed by the voters. Kennard -- confirmed 2006 with 74.5% Corrigan -- confirmed 2006 with 74.4% Werdegar -- confirmed 2002 with 74.1% Moreno -- confirmed 2002 with 72.6% Baxter -- confirmed 2002 with 71.5% George -- confirmed 1998 with 75.5% Chin -- confirmed 1998 with 69.3%

DEMOCRATIC: Six of the seven were originally appointed by Republicans.

ACTIVIST, LEGISLATING FROM THE BENCH: The California legislature has passed Gay Marriage Rights TWICE, both times vetoed by Ahnold The Governator.

The Precedent for the decision is from 1948:

The California court cited the 1948 Perez v Sharp anti-miscegenation law ruling prominently in its decision today. If you believe that courts should have no role in opposing public opinion in areas of social policy, then the polls at the time make for interesting reading. Ten years after the 1948 ruling, Gallup fund that 94 percent of white Americans opposed inter-racial marriage. As late as 1967, when Loving vs Virginia was decided, a majority opposed it. That remained the case through the 1970s. In fact, the Perez v Sharp ruling was fifty years ahead of public opinion.

Clarifying Comment From NY Law Professor Arthur Leonard:

"The court agreed with the plaintiffs that the correct way to characterize the fundamental right question is whether there is a fundamental right to marry from which same-sex couples are unconstitutionally excluded, rather than, as the state argued, whether there is a fundamental right to same-sex marriage. The court referred to Perez v. Sharp, 32 Cal.2d 711, its landmark 1948 ruling striking down the state’s law against interracial marriages. In Perez, the court had not treat the question as whether there was a fundamental right to interracial marriage; rather, the question was whether different-race couples were being wrongly denied the fundamental right to marry."