Good As You

In the first article, did he refer to the activist judge as both Robert Hanson and Robert Polk? Or am I just going crazy?

Lol..yes he did. I didn't even catch that. It was Polk County, so that must have bee the confusion.

What is your evidence that Judge Hanson's ruling wasn't activist?

Do you have sound constitutional reasons for supporting the ruling, or do you support simply because you like the result?

David: The "activist judge" label is a hostile term placed on any and every judge who rules in a way that favors gay folks. There is no sound constitutional reasoning for denying gay couples the right to marry. Judges who do rule against gay equality typically do so out of acceptance of the flawed "pro-family" arguments involving child-rearing and family stability.

The true question: Where is "pro-family" movement's evidence that every single judge who rules against their narrow worldview IS an "activist" and not just a reasoned individual who ruled in a manner he sees consistent with the law of the land? Social conservatives are so quick to brand them with this unfair label, with little to no concern for the accuracy of the accusations!

I have read the Gay City News breakdown of the decision, as well as the decision itself and it seemed both fair and defensible. It will be interesting to see the argumnets in opposition if this is overturned.

http://gaycitynews.com/site/news.cfm?newsid=18768968&BRD=2729&PAG=461&dept_id=568864&rfi=6

http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf

Todd: Thanks for the links.

Jeremy: I know that any pro-gay action will bring a knee-jerk reaction from the 'pro-family' folks. But their willingness to overuse the term 'activist judge' doesn't mean that any particular ruling that generates their ire isn't improper.

Just because a judge acted in a manner "he sees consistent with the law of the land" doesn't mean that his ruling really is consistent with the law.

I asked my questions because it seems only fair that if you're going to criticise accusations of judicial activism in a court ruling, you should first know that said ruling really isn't activist. (A ruling is activist if it replaces the legislature's ethical judgment with the court's.)

One more thing: your reply that "There is no sound constitutional reasoning for denying gay couples the right to marry," turns legislating on its head. A legislature doesn't need a constitution's permission to draw a distinction between actions. The question for a court in reviewing a law is whether or not any specific constitutional provisions forbid any part of said law.

David: The entire idea that a ruling is "activist" if it "replaces the legislature's ethical judgment with the court's" is a right-wing definition. It's the old debate between what is "judicial activism" and what is simply "judicial review." Personally, I think that courts MUST uphold the constitution and strike down statutes that violate it (anti-marriage laws, for instance). And I think it's the DUTY of the courts to protect minority rights.

There truly are activist rulings in which a judge let's personal beliefs and desired outcomes influence their ruling. However, folks like Perkins flagrantly use the term to describe a ruling with which they simply disagree.

As for your final thought in regards to a legislature needing or not needing "a constitution's permission" -- I really don't know why you are inferring that I said that they did! I'm speaking about Hanson's ruling, not the legislature's decision to enact the law. Hanson, using the constitution as his guide, determined that the law is in violation of said governing document. I fail to see why anything I said "turns legislating on its head."

Jeremy: No one is saying a state judge shouldn't apply his state's constitution. But there is a difference between applying it and misapplying it.

No, my definition of judicial activism isn't a right-wing definition. Judicial review involves applying neutral legal principles to cases. Judicial activism involves judges acting as policy makers. When judges do this they replace the ethical (as opposed to legal) judgments of the legislature with their own.

Hanson's ruling redefines marriage. That would seem to be activist on its face. What reason do you have, other than your desire to see legal protections for gay couples, to think this ruling isn't innappropriate?

David: You are acting as if there is one lock-solid definition of what constitutes judicial activism. There is not. And yes, it is my opinion that your position in the debate on this subject is the one often embraced by those right of center. That's not a slam or a judgment -- it's just what I've found to be true.

Plus you use words like "redefine marriage" to describe the ruling, which is hostile terminology (the likes of which is, again, embraced by social conservatives). Personally I do not feel that rulings that find marriage bans to be unconstitutional "redefine" anything, but rather remove the unjust, unconstitutional restrictions that are in place. And I don't feel that any "ethical judgment" came in to play in Hanson's ruling.

I don't mean to say that there is a single definition of judicial activism in the sense that a single sentence would cover all possible instances. But a court is either usurping legislative authority or it isn't.

If you read those Federalist Papers written by Alexander Hamilton, it is clear that those who founded the American state assumed the judiciary would be a branch of government devoid of will -- it would never act to determine what public policy should be.

From the time the state of Iowa was founded (and a long time before that) marriage has been defined as a strictly heterosexual institution. My original comment here asked you if you had any evidence from Iowa's constitution that demonstrated a change in marriage policy had been written into it. In 3 replies to me you have offered none. I must assume that is because you have none to give.

Your stated grievance against the militantly anti-gay, "pro-family" crowd is that they will have a knee-jerk reaction against any pro-gay court ruling regardless of its legal merits. But when you refute the self-evident truth, that changing marriage from a heterosexual only affair to a heterosexual or homosexual affair is a legal redefinition of it, you display your own emotion-driven reaction to court rulings: if its pro-gay its legally proper. Thus your charge against the "pro-family" folks amounts to a pot calling a kettle black!

You must learn to separate your sense of injustice over the lack of legal protections for gay couples from any judgments about the constitutionality of marriage laws.

David: We simply disagree. On much.