If it fails, opponents of same-sex marriage will no longer be able to say that activist judges have imposed their mores on an unwilling Californian public.

They will anyway! Logic and reason are not the strong suit of these people.

They shouldn't argue it NOW - after all, it is, in fact, the JOB of judges to provide decisions on questions put before them (assuming they have jurisdiction). And those decisions are supposed to be based on legal reasoning, precedent, constitutional principles, and the judges' judgment (that's why they're called judges!) The will of the people matters, but in an interpretive sense to tangential or related statutes, not in terms of the question at hand.

In other words, the people's will and intent matters when it comes to the meaning of the equal protection clause enacted earlier, and other issues. It doesn't directly matter what they previously thought about legal gay marriage, since whether banning it is unconstitutional or not is actually the question at hand and it is not directly addressed in the constitution. If the people's will mattered in that case, no court would ever overturn any legislation, even if it is a completely clear violation of the constitution.

It sounds downright unamerican to say "the people's will doesn't matter" and I don't mean it broadly, but only in the narrow sense that the people's will about a specific constitutional question is irrelevant while it is being decided by the judicial branch. That's WHY the judicial branch exists.

The "activist judge" whine is just a convenient excuse for the losing side when the status quo is not upheld.

No one is whining activist judges, Do you not know that most of these judges were appointed by republicans so don't try and categorize those of us who still believe we should be a moral and civilized society living by the laws which were taken from the Bible! It is just WRONG PLAIN AND SIMPLE! The people overwhelmingly voted against this or have you forgoteen Proposition 22? What about the polygamists and pedophiles shouldn't they get the same rights as homosexuals? What those judges have done is open up a big giant can of ugly worms that will devour us all if we don't wake up and get back to basics.

Read the decision, you troglodyte retard. Your fears are stupid and uninformed.

Saying "plain and simple" does not count as reasoning. I am a moral and civilized person. You are a bigoted jerk. And what does the political party of the person who appointed each judge have to do with anything I said?

Nobody is whining about activist judges? You need to read more; this is simply false.

You seem to be confused about the concept of judicial activism.

It's not merely judges 'writing' the law. It's where they place the burden. Activist judges believe that the state must defend the law - non-activist judges believe that the plaintiffs must attack it. That is, to someone opposed to judicial activism, it is not enough to show a law is discriminatory - the plaintiff must demonstrate that this discrimination is based on faulty principles.

The difficulty with placing the burden on the state is that - in most cases - the attorneys charged with defending the opinion aren't particularly interested in doing so and don't have much incentive to do a good job. The result is - as we've seen - groups circumventing the legislature by targetting 'easy' marks.

Nor is this an issue of results. I happen to agree with many of the results of 'activist' judges - as do most people who oppose judicial activism. But unlike those who disparage the term 'judicial activism', we also recognize that ceding this power to judges is inherently dangerous. The legal principle underlying Roe v. Wade can also be used to invalidate minimum wage laws or worker compensation laws. Keep in mind that the original use of substantive due process was not unravelling Jim Crow laws, but rather attacking labor laws.

You're right. The only time you ever hear anyone shrieking about 'activist judges' is when someone's own personal bigoted stupidity is slapped down.

It's the 'activists' among the grass roots, the legislatures, or the courts who pull us, kicking and screaming sometimes, forward. If judges existed just to reaffirm the Old Ways, as laid out in whatever set of brutal tribal prejudices are still in vogue among the idiot mob in question, we'd still be burning heretics and bending the knee to crowned tyrants.

I'm glad I live in an age when so many filthy biblical bigotries are finally being ushered onto the ash heap of history. It'll always be two steps forward, one step back, I guess. But for now at least, the half-wit hate spewers have had yet another rug pulled out from under them. While I applaud.

"Activist judges believe that the state must defend the law - non-activist judges believe that the plaintiffs must attack it."

....and they did. Did you think this suit came from nowhere?

"That is, to someone opposed to judicial activism, it is not enough to show a law is discriminatory - the plaintiff must demonstrate that this discrimination is based on faulty principles."

You seem to be confused about the legal idea of "discrimination". Laws aren't overturned because they are discriminatory. Discriminatory merely means "deciding based on some characteristic". The fact that the discrimination is subject to strict scrutiny and does not stand up to it MEANS that it is based on faulty principles. So, they did.

"he difficulty with placing the burden on the state is that - in most cases - the attorneys charged with defending the opinion aren't particularly interested in doing so and don't have much incentive to do a good job."

Cry me a river. Get better attorneys. When a law is challenged, the state DOES have to defend it.

dgriego,

If you think that human beings get our morality and laws from the Bible, I suggest you do more research.

It's been a good while since ConLaw, but I think where the burden rests depends on the standard of review, no? I could be wrong (that is the normal state of things).

Your wrong! oUR LAWS WERE NOT TAKEN FROM THE BIBLE.t.JEFFERSON,J.MADISON.AD­AMS,HANCOCK AND MOST IF NOT ALL OF THEM SAID OVER AND OVER AGIN THAT OUR LAWS ARE DERIVED FROM COMMON LAW AND THE PHILOSOPHY OF JAMES LOCKE.NOT THE BIBLE.

"OUR LAWS ARE DERIVED FROM COMMON LAW AND THE PHILOSOPHY OF JAMES LOCKE.NOT THE BIBLE"

Madison, hang in there. I've been debating the same thing for half of today. Where on earth do people get the idea that any of those great minds wanted to subject themselves to religious tyranny? I can have better discussions involving the forming of the Constitution and our legal system with fourth graders because at least it's fresh in their minds.

I wish we could have an age of Enlightenment right now...