Judges making law . . .

It's fascinating to read reports about the recent oral argument in California's Supreme Court on challenges to "Prop 8"--Californians' recent vote to explicitly maintain the traditional understanding of marriage in the state's constitution.

This situation epitomizes the problem with activist courts and activist judges . . . as detailed at Wikipedia (History of marriage in California) :

In 1977, the California Legislature amended [CA law] to read that marriage is 'a personal relation arising out of a civil contract between a man and a woman'.[2] In 2000, voters passed ballot initiative Proposition 22 with 61% of the vote, which added a section to the California Family Code to formally define marriage in California as a union between a man and a woman.

. . . .

On May 15, 2008 the California Supreme Court, by a vote of 4–3 In re Marriage Cases, ruled that the statute enacted by Proposition 22 and other statutes that limit marriage to a relationship between a man and a woman violated the equal protection clause of the California Constitution. It also held that individuals of the same sex have the right to marry under the California Constitution.[17]

. . . .

On November 4, 2008 Proposition 8, an amendment to the California State Constitution [reinstating the traditional definition of marriage] passed 52.3% to 47.7%.[21][22] . . . Numerous lawsuits were filed with the California Supreme Court by same-sex couples and government entities, challenging the proposition's validity and effect on previously administered same-sex marriages. The court is expected to rule on the suits sometime in 2009.[24]

After reading various reactions to recent arguments in the California Supreme Court ("The Daily Dish | By Andrew Sullivan (March 05, 2009) - Prop 8 Oral Argument Reax") and it occurs to me (a) how unwise it is to attempt to guess how judges will rule based on their questions at oral argument, and (b) how much folks are underestimating this particular Court's shameless capacity to legislate from the bench.




Note: how judges are selected in California.