Impossible Separation: The Role of Judicial Activism

Participatory democracy is alive and well. In Maine, the people once again have spoken - gays will continue to be viewed as undeserving of any of the privileges bestowed upon married couples. Make no mistake these are not rights ,they are privileges that our Nation and its States bestow. Not the basic rights of with whom one chooses to associate or co-habitate but the legal privileges that such unions automatically bestow to some.

It is also inescapable that most resistance to legalized gay unions is religiously based. What of our much touted separations of church and state? It doesn't exist in the voting booth. In a democracy people get to vote the way they wish. If religion is a big part of their lives they get to vote their religious values no matter what anyone else thinks about it. Bigots, saints, children of the enlightenment, educated and ignorant all get to vote. It is the cost of democracy. For most of us it's an impossible separation.

It's also just plain wrong in this case. It may be the will of the people but the people have been wrong before. That's why we have those nasty activist courts. Most people are incapable of separating their beliefs from what should be the law of the land. That's why courts have had to be color blind, gender indifferent and yes even blind to faith and beliefs. Activist courts have lead this nation, often unwillingly by its nose, toward greater equality for all of its citizens. The separation of church and state exists in our laws and is only as good as the courts that enforce it. It's why both right and left often hate the courts - they are least affected by our rhetoric. Yes, national amendments can overturn the courts but that is really really hard to do. We rant and rave about a lot of things but at the end of the day few really want to mess with the articles of the Constitution. It's one of the best protections against mob rule we have. It's hard to sustain that kind of angst through a national Constitutional debate process.

The people have spoken. But emotional and philosophical decisions made by the electorate don't always result in justice and sound laws. That's one of the reasons why the Founders created the Courts in the first place. The Courts get to decide if our personal opinions about some of our fellow countrymen should or should not be legally binding. Some call it activism but I think of it as a useful paternalism /maternalism that balances our basest instincts. Serious men and women on the bench mitigate the emotional rabble rousing of us in the masses. And we are all safer and more free because of it.

It's time for the law to recognize, as it has so many times in the past to our eventual common good, that being gay is just another of the faces of humanity. And one worthy of the same considerations as all those other democratically unpopular faces that went before it .