LooseCannon said:
Have you read the decision from Perry v. Governator, cfh?
I have, and I think Walker strains a bit to get the result he wants. (Judges do it all the time, there's even a name for the study of this phenomenon, "legal realism.") He also cites a fair number of "substantive due process" cases to get there, which are indeed law, but many scholars think they overstep what Courts should be doing, including at least four Justices on the Supreme Court. (Most of these cases are considered to be more liberal-leaning, though the irony is that the first substantive due process case to read into the Constitution a "right" that really isnt there was the hard-core conservative free-market
Lochner decision prohibiting restrictions on work hours in bakeries. That case read into the Constitution a right to freely contract, which has since been discredited.) These two things lead to Shadow's point: Courts legislating when they probably shouldn't. Let me be clear so no one is offended: I think gay people should be allowed to marry, and voters should pass laws saying so. Actually, I think Legislators should pass those laws, not voters, and as a California resident I despise all the Propositions, because I simply don't believe in direct democracy -- it leads to bad laws like Proposition 8. I just question whether it is really a
constitutional right such that Legislatures have no say in the matter.
As a policy matter, I would be surprised if the SCOTUS eventually takes this case, as I noted above, for a number of reasons. One of them is that it is too political right now. Another is that they probably think that, regardless of the outcome, eventually a state will allow gay marriages via legislative policy, and the Full Faith and Credit Clause probably forces other states to recognize those marriages. In short, it is only a matter of time before this becomes a moot issue anyway. Let's hope so.
One other thought: I actually think Walker's decision was well-written and fairly clever. He is a smart judge. He is assuming that this case will go to the SCOTUS, and I have read that he crafted the decision to single out and influence Justice Kennedy, on the assumption (probably a correct one) that he would be the swing vote if the Court decided to take the case. But first, the Ninth Circuit. I will be very curious to see the panel that eventually decides the case, as the Ninth Circuit has a lot of judges ranging from the very liberal to the very conservative. The Chief Judge of the Circuit, Judge Kozinski, falls into the latter group, by the way.
I meant the amendments were confusing, not the constitution itself, since the Finnish system doesn't use "amendments" in the same way as the US. Our constitution was rewritten in 1999 (originally from 1906/1919), which to me seems somewhat more practical in the long run. Also, there's no need to refer to a specific amendment, just the constitution, which makes it easier for the layman to understand as well. E.g. it's more understandable to refer to "constitutional freedom of speech" than the "first amendment".
