Some responses on Judiciary and Gay Marriage

Scott and others who care to respond:

Justice Cardozo argues that judges must "fashion laws for the litigants before him." You may agree or disagree with this---but how can it be unfair to call this "legislating from the bench"? Isn't that, in fact, exactly what he's saying?

You further argue that while the legislature enacts the will of the majority, the judiciary protects the rights of the minority. I would add that they protect the rights of the minority both from the majority (via the legislature) and from other minorities (they arbitrate if you steal from me). My question is: who protects the rights of the minority from the particular 9-person minority called the Supreme Court? My answer of course is the Constitution. It circumscribes the court's authority precisely because it is not "living" or "evolving" in the sense Cardozo intends. It changes only by consent of the governed---through the means Christopher outlines below.

Cardozo no doubt views his position as having great importance. A less expansive view of his own powers is "narrow" and not "worthy of his office." At the risk of hyperbole---is this not the view of all tyrants? Should this make me less concerned with carefully circumscribing the court's authority?

In the end I'm still unsure how you answer my question #2. As far as I can tell you believe there are many "guides": logic, history, customs, justice, morals, social welfare, "evolving as a people", "learning from our mistakes", etc. The advantage to having innumerable and vague "guides" is that almost nothing is proscribed. But then I'm not sure I understand on what basis you view Dred Scott as "wrong"? Do you mean it was wrong when decided? Weren't the justices using the guides you've outlined? Or was it correct then but not when it was overturned? If the only basis on which to conclude the court has overreached is when the court decides it has overreached aren't you really saying the court is never (presently) wrong?

If I've misunderstood your argument I'd be glad for clarification.


Christopher:

I'm obviously in broad agreement with the judicial philosophy you describe. I also think we're in agreement on domestic partnerships and marriage.

On the Church and Prop 8: I'm interested in the reconciliation of your views on domestic partnerships (you favor granting the same govt benefits to homosexual partners as married couples) with your views on the Church's involvement. Do you think the Church shares your views here? When you say the "same governmental benefits" that would include things like adoption, something the Church is against. How would (do) you reconcile this dissonance?

I do not view my disagreement with the Church on policy (even those with moral consequence) as not sustaining the leadership of the Church. If I disagreed with the Church on an issue where I had received counsel to vote or act in some way I would struggle with it. But isn't this struggle the basis of all faith and testimony? I don't believe the Lord wants us to "sustain" if that means accepting without thought the recommendations of our leaders. I'd be interested to hear your (and everyone else's) thoughts on this matter.