Jonathan Dresner: Doubletalk on Gay Marriage
Lisa Schiffren ("How the Judges Forced the President's Hand," 2/29) is rehashing arguments which went out of style forty years ago, when miscegenation --"race-mixing" marriages -- were being challenged. Laws against miscegenation were popular and widespread. Race separation was"fundamental" to American society. And yet it was, as the bans on gay marriage are now, a fundamental injustice based on an atavistic, vestigial distaste, on private concerns that have no place in public law.
And the invocation of"activist" judges is doubletalk of the finest kind.
Judges, particularly federal judges, have a dual role: application of
the law and interpretation of the law. In the latter role judges must
sometimes apply law to situations unforeseen by the authors, or balance
competing rights and legal mandates, and by their decisions create
precedents and principles. This"activism" is integral to the role of
the judiciary as a coequal branch of government.
Jonathan Dresner, Ph.D.
Assistant Professor of East Asian History University of Hawai'i at Hilo http://www.uhh.hawaii.edu/~dresner
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