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Originally Posted by xxxTHX1138xxx
didnt see your point or hear the whooshing sound. It seemed you were mostly focusing on how legislaters and the middle ground created this mess....even though it has.
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When I went into the details, yeah, I was, but my opening sentence was:
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I'm beginning to wonder whether we haven't lost our understanding of why the Framers included the antidemocratic features they did in the Constitution.
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(emphasis added)
The courts exist in part precisely to
thwart "the will of the people" where that will would trample on fundamental rights. Rhetoric about how the courts ignore the popular will miss that basic point and call the legitimacy of the judiciary and its role in a republican system into question.
That is not to say that judges either should always ignore the popular will nor that they always make decisions in line with the need to protect fundamental rights, nor does it say that we all agree on what those fundamental rights are. I happen to believe that once marriage became first a civil ceremony divorced from religious context, then a status not necessarily bound up with the raising of children (many of the legal benefits conferred on married partners apply not because of the presence of children but merely because the partners have committed themselves in this manner), it became a right more in line with the other fundamental rights on which I believe all of us agree. You, I presume, differ -- and I will even allow that some court decisions (
Roe v.
Wade most notoriously), while perhaps right from a philosophical perspective, were bad ones because they cut off public debate that would have ultimately produced a more durable consensus not all that far from what the supporters of the decision sought. The fact that many liberals feel compelled to oppose gay marriage but support "civil unions" indicates that the argument is already headed in my preferred direction, and to the extent that this is true, we may come to regret this decision if we cannot counter the likely backlash.
But given my view on what the fundamental right is at stake here, I cannot help but agree with the decision reached on principle, and only meant to note with my opening sentence that just because it ran counter to the expressed sentiment of the majority does not make either it or the judges who reached it wrong on their face.