Thursday, August 9, 2012

Alan Kay, let me introduce you to the Rule of Law

 this federal judge, Alan Kay, ruled in Hawai'i today that the state laws, which grant civil partnerships for gay couples but not marriage rights were not unconstitutional.  He didn't try to answer the question on its merits, despite the fact he is a judge, no, he let loose with this gem:

" If the traditional institution of marriage is to be reconstructed, as sought by the plaintiffs, it should be done by a democratically elected legislature or the people through a constitutional amendment," and not through the courts"


I interrupt the regularly scheduled neglect of my blog to vent my rage on this one.


If a mob decides the law, it is rule by mob.  The balance on the legislature - the mob - is a strong judiciary committed to the rule of law.  This is the genius of the constitution (the intent of the founders, if you're dirty like that).  


But it only works if the members of the judiciary step up.  


And judges have a responsibility to write the law - within the confines of the facts of the case before them.  It's a burden, it's a sacred duty.  Alan Kay took his sacred duty and punted.  He's not the first, but that doesn't make it right.  The time for the judiciary to start making calls on the cases in front of them is ALWAYS.  Remember Alan, history does not look kindly on Justices who wrote the Dred Scott decision. There is a reason you are sitting underneath Lady Justice who has a blindfold on.  That is because your mandate is to do justice and be blind to the consequences:  fiat justitia ruat coelum.  That is latin for:  do justice though the heavens be rent asunder.  Translation:  do the right thing even if that means things hitting fans. 


I do not think it should be controversial or even remarkable to assert that a judge is obliged to decide the law based on the facts before her or him.  Somewhere along the line our judiciary has put themselves in the back seat and made that assertion seem controversial and remarkable.  This is problematic. 


So I don't blog when we have the 3 Day Play with Gomito Theatre Company in my back yard and 14 kids devise and perform a great play entitled Where Has All The Magic Gone?  And I don't blog when we go to the Secret Garden Party and sleep in a tent and for four days slog through mud and participate in a strangely perfect celebration of humanity.  I don't blog when we go to the Olympics, I don't blog about Edinburgh (although I will).  


I blog for this, to point out an error, to tell everyone that I still believe justice is possible, I believe ineffably in the rule of law.  I am therefore displeased with Alan Kay.  

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