Wednesday, June 04, 2008

Justice Without Delay

In an atypically expedited action today, the California Supreme Court dismissed all motions holding up the implementation of their historical decision recognizing the fundamental right of gays to have our marriages to be accorded equal dignity by the state. They dismissed a motion to rehear the case (by the same 4-3 vote that decided it), and they unanimously declined to stay their decision pending the outcome of an initiative constitutional amendment scheduled for the November ballot. This means that licenses should start issuing as early as June 17.

Those who decried the Court "disregarding the will of the people" (a fundamental misunderstanding of how our constitutional form of government is supposed to work, which I have discussed before) are now indignant about the "arrogance" of the Court in not being able to wait until November to see the outcome of the election. These same people complain about the arrogant Court supposedly usurping the prerogative of the legislative branch, as well as the people, and "making policy decisions, not legal ones". I find that ironic. The Supreme Court has interpreted the Constitution as it stands today, which is exactly what their constitutional role is. Theirs is not to speculate about how the Constitution might be amended pending the outcome of future elections. That would be a political decision, not a legal one.

I found the same irony in reading the dissenting opinions, in the notion of present political powerlessness as a criterion for identifying a "suspect class". The dissenters urged that the Court should take notice of the legislative progress in advancing gay rights, and hold this against finding sexual orientation to be a suspect class. They also seemed to suggest that the Court should not step in to a matter where there had been active legislative advances. But such judgments, about progress and political power, are political judgments, not legal ones. The legal judgment should consider the law in question against the Constitution, pure and simple. Either the law is constitutional or it isn't. That decision should be timeless, and without regard to current political circumstances. Yet these same people (including the dissenting Justices) who cry that the Court overstepped its role and made a political decision, are wanting the Court take notice of political considerations. Whether gays are "powerless" or "powerful", whether the legislature is making sufficient "progress", those are not legal considerations. The Court, in reaching its decision, properly looked only to the constitutional law.

Even more strange, if the dissenters' suggestions to consider progress and power are taken seriously, the logical conclusion is that the Court should have recognized the infringement of fundamental rights when the question was first brought in the 1970s, when gays were powerless and there was no progress. Apparently, had the dissenting Justices been on the Court thirty-five years ago, they would have ruled in favor of gay marriage then, when the injustice was even more stark. But if it was unconstitutional then, it is unconstitutional now. Assuming you're not "overstepping". Tell me again who's making political decisions?

In any event, it's nice to know that all seven Justices are in agreement that justice delayed is justice denied.

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