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02/23/2012

Not what we wanted = 'activist': The anti-gay movement's dangerous judicial game

by Jeremy Hooper

The following line, made in reaction to Justice Linda Feinberg's decision to let a case challenging New Jersey's inadequate civil unions law to go forward, shows just how fundamentally flawed the far-right's view of the judiciary has become:

"She’s been pretty good as far as not being an activist judge, so this step here was kind of confusing to us,” said Len Deo, executive director of the New Jersey Family Policy Council. [Citizenlink]

The LGBT rights opponents have so fully crafted the "activist judge" schtick that even a procedural development like this supposedly falls in that category. We now live in a world where one side of this debate positions judicial decisions on LGBT matters as being either decided in their favor or else meant to be shunned as "activist." And in this case, simply hearing a pro-LGBT claim is enough to qualify.

I can honestly say that our side doesn't do this, at least not as a consensus position. We resist bad rulings. We challenge bad rulings. We note any obvious ties that might have shaped bad rulings. But we do not, in general, portray a judge or a judicial body's more conservative read as being automatically based in something other than their own understanding of the law. Even when we disagree with a decision, we, by and large, still accept that the opinion came from interpretation of the law, regardless of how wrong-headed we might think it to be. We are not, as a movement, out on a negligent quest to undermine a crucial branch of government.

Our opponents in this ongoing same-sex marriage game have proven themselves to be on such a quest, cultivating deep-seated mistrust, if not bona fide animus, against the independent judiciary. It's obvious why they do this with the one branch where their faith-fueled talking point machines find less accommodating outlets. Obvious, but still quite dangerous.

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*By the way: This same Len Deo just recently painted marriage equality as tinkering "with natural law" and challenging "God in His creation of the natural order," adding that "He will not be mocked." If we want to talk about activists who judge.

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