Thank god for activist judges

Andrew Sullivan notes that in its decision yesterday overturning the state's ban on gay marriage, the California Supreme Court cited Perez vs. Sharp, a 60-year-old ruling striking down a ban on interracial marriage on grounds that it violated the Fourteenth Amendment.  He makes an interesting observation:

If you believe that courts should have no role in opposing public opinion in areas of social policy, then the polls at the time make for interesting reading. Ten years after the 1948 ruling, Gallup found that 94 percent of white Americans opposed inter-racial marriage. As late as 1967, when Loving vs Virginia was decided, a majority opposed it. That remained the case through the 1970s. In fact, the Perez v Sharp ruling was fifty years ahead of public opinion.

I don't have any polls to cite, but I'd be willing to bet that any polls done in the South prior to the '70's would have shown strong opposition to getting rid of Jim Crow legislation in general, much less anti-miscegenation laws.  For comparison, a recent Gallup poll found that 40% of Americans believe that same-sex marriages should be recognized as valid by the law, with the same rights afforded to straight marriages.

Our judges are not responsible for enforcing public opinion - that responsibility lies with the legislatures and executives who head our federal and state governments.  Our judges are instead empowered with the responsibility of interpreting the laws passed by the other two branches of government, and making sure that they pass constitutional muster.  Many of the great civil rights achievements that were made during the 20th century came about because of so-called "activist" judges who interpreted the law without regard to popular opinion, and they got some of the same kind of verbal abuse that today's judges now receive when they hand down a ruling that upsets the status quo.  Forty years from now, the people who are blathering on today about how gay unions threaten the sanctity of "traditional" marriage and the foundations of Western society will look just as ignorant and hateful to your grandchildren as their ideological predecessors, who once lined the streets with rebel flags to protest the desegregation of public schools, now look to you.  And by then, I'm sure the "traditionalists" of the future will have found some new group to pick on, and some new grievance to bitch about.  Here's hoping that when that time comes, they have judges like the ones sitting on the bench of today's California Supreme Court there to enforce the law and safeguard people's rights.

Oh, by the way, if you're talking about this ruling around the watercooler today, and some right-wing blowjob starts prattling on about "unelected judges" ruining the country, feel free to inform him/her that the justices on the California Supreme Court are subject to periodic confirmation elections, that all seven of the justices currently sitting on the court have successfully weathered confirmation votes, and that in their most recent confirmation elections, not a single one of the justices received less than 69.3% in favor of retention.