legal reasoning

As odd as it may seem, I'd like to take some time and write seriously for a moment (as I lay here on the familiar lumps of the couch of good friends after a quality nite out at the bar...obviously my reasoning could be impaired at this point). Yesterday the California Supreme Court overturned a ban on gay marriage. Aside from any personal beliefs I have on the issue (which I'm sure anyone who knows me well at all already knows said beliefs), I have taken issue with some of the reasoning of the dissenting justices (or at least what I have heard of it from bits and pieces).

First off, by no means are my thoughts here fully thought out and fully informed. I base these opinions on the bits of information read in news articles over the past few days, as opposed to the actual opinions of the various justices. Second, I am not a legal scholar but just someone who managed to make his way thru law school and actually enjoyed it at times, especially the more intellectual/academic exercises that were not always the most practical.

With the disclaimers out of the way, I noticed that some of the dissenting opinions were based (in my words, as much accuracy as they may maintain) on the idea that the judiciary should not usurp the power of the people and that the issue should have been left up to the legislative process and the people at large.

While it is easy and obvious to agree with the principle at first blush, it is also incorrect. Our governmental system is one of checks and balances; this is true on the federal as well as state level. Certain issues or matters fall within our outside the purview of each branch. Certain matters are to be subject to legislation and the will of the people. Yet at the same time the judiciary is to serve as s check on this branch.

The simple fact is this: sometimes the legislature, sometimes the people get it wrong. At the time that the California Supreme Court first struck down a law banning interracial marriage, I doubt public opinion was in favor of interracial marriage. As paternalistic as it may sound, sometimes we need someone to tell us what is right and what is wrong. In fact, the government tends to serve that purpose on many occasions.

Aside from any form of paternalistic argument, the point is that sometimes it is the courts that must step into the protect the rights and liberties of the minorities, of the groups that do not have the political power or general sway of others. At the end of the day, sometimes it is the courts that make major decisions and alter the path of our nations. And it should be exactly that way.

I'd say more but it's not after 3 a.m. and I've been up since 7 a.m.