# Judicial activism is a good thing, unless you disagree! And how long have we had it? **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2004, 11:14pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565 "2004-11-18T23:14:17Z")\ **Posts on this page:** 20\ **Page:** 13
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 27, 2004, 9:05pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/241 "2004-11-27T21:05:28Z")
> [@DMC](#): > > I never said it happened in the 80’s, by the way, just that there weren’t a large number of laws specifically voiding same-sex marriage at that time. Our bigotry has only been codified more recently. Yeah, and whatever could have precipitated those changes? The case you cite to involves the Vermont civil union kerfluffle. In the wake of that decision, a bevy of states decided to make clarifying changes to their marriage codes to make explicit what they had long thought clearly implicit. Again, I think you have a hard case to make if you wish to show that legislators making those changes thought they were making any kind of substantive modification to the institution of marriage, as opposed to a simple legislative clarification making explicit what is already implicit via tradition. > [@DMC](#): > > Since the authors of most of those laws are long dead, it’s a bit presumptious to put words into their mouths or into their laws. I’ll stick with the activist label, thanks. It is hardly “presumptious” to recognize the simple fact that, until recently, the notion that marriage was a hetero-only institution was accepted as incontrovertible. Do you really believe that those legislators believed otherwise? What color is the sky in the world you live in? Giving full effect to the will of legislative majorities is _not_ activism. Indeed, it’s the very opposite of activism. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 27, 2004, 9:06pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/242 "2004-11-27T21:06:53Z")
> [@Homebrew](#): > > Interesting. So what’s the point of this bit? Your Google skills are impressive. However, you missed the forest for the trees in terms of the point I was making. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 27, 2004, 9:16pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/243 "2004-11-27T21:16:38Z")
I see a clear-cut logging site where a forest used to be. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 27, 2004, 9:19pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/244 "2004-11-27T21:19:53Z")
> [@Dewey Cheatem Undhow](#): > > It is hardly “presumptious” to recognize the simple fact that, until recently, the notion that marriage was a hetero-only institution was accepted as incontrovertible. Do you really believe that those legislators believed otherwise? What color is the sky in the world you live in? Incontrovertible is a very strong word to use. If it was indeed so, why would it have changed recently? It’s incontrovertible that the earth is not a flat disc supported by four elephants on the back of a giant turtle, floating through space. You won’t suddently see 35 states pass laws stating it to be round today. What’s not incontrovertible is exactly what the legislators intended with regards to marriage, **other** than what they actually codified. It’s quite possible they didn’t conceive of two men attempting to marry. If so, then there is nothing illegal about two men doing so until it’s codified. Until recently, it wasn’t. As far as I’m know, assumptions are not legally cognizable. Feel free to give me the lawyerly take on that. Heck, do it from a strict constructionist standpoint for fun. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 27, 2004, 9:28pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/245 "2004-11-27T21:28:18Z")
How about the dictionary deinition of [marriage](http://dictionary.reference.com/search?q=marriage) and the need to differentiate same sex marriage from the traditional meaning: > [@](#): > > mar·riage Audio pronunciation of “marriage” ( P ) Pronunciation Key (mrj) > n. > > 1. a. The legal union of a man and woman as husband and wife. > b. The state of being married; wedlock. > c. A common-law marriage. > d. A union between two persons having the customary but usually not the legal force of marriage: a same-sex marriage. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [November 27, 2004, 9:32pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/246 "2004-11-27T21:32:46Z")
> [@Dewey Cheatem Undhow](#): > > Your Google skills are impressive. However, you missed the forest for the trees in terms of the point I was making. Actually, I think **Homebrew** is trying to point out that legal definitions are usually made explicit, even when the words being defined are common and ordinary. I’m more or less on your side on this particular point - I think that the common law take on marriage would, if ever it had been spelled out, been explicitly heterosexual. But there is a counterpoint here as well, and it’s not like **DMC** is away out in left field. If the legislators who rushed to explicitly define marriage following the court decision in Vermont (or Hawaii, or Alaska, or Massachusetts) truly believed the implicit definition of legal marriage as heterosexual in nature had the same legal force as the implicit common law tradition, they wouldn’t have bothered with their explicit definitions. I’m not entirely sure what the significance of the point is, though. The bare fact that a group of people has historically been barred from participation in a social institution doesn’t constitute a reason to continue barring them. The grounds on which they’ve been barred in the past may, if they’re actually reasons, but the _mere_ fact of tradition isn’t a reason of any sort whatsoever. That’s not a legal statement, that’s a statement based on my best understanding of what constitutes a reason. But none of that changes the fact that legal recognition of gay marriages would be overturning tradition. I believe all the Canadian decisions on this matter have been quite explicit in stating that they’re overturning the common law tradition. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 27, 2004, 9:37pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/247 "2004-11-27T21:37:40Z")
> [@ElvisL1ves](#): > > And in comparison to those presented by **stratocaster** against me too, I trust? It seems you seriously have your own conduct blocked out in your mind, don’t you? Try scrolling back and reading your own posts and it should become clear. It isn’t worth my time. Sure, whatever. Your only real response to my points has been to call me “vitrolic” and suggest I take things to the Pit. You are resorting to pounding the table, and even your table-pounding is misguided, as I’ve certainly heaped less venom on you than you have on **Huerta**. > [@ElvisL1ves](#): > > In the same way that a Virginia legislator as recently as 1967 would think that, of course, marriage could only occur within the same race, out of simple tradition? What **John Mace** said. Indeed, prior to 1967 many states allowed interracial marriage. Sammy Davis Jr. married May Britt in 1960; boxer Jack Johnson married white women three times, in 1911, 1912 and 1924, to cite two famous examples. Indeed, the term “miscegenation” did not come into common use until shortly after the Civil War, and anti-miscegenation laws were largely the province of the Jim Crow South. > [@ElvisL1ves](#): > > And yet, if there were ever reason to explore the definition of “bicycle” in a court case, it would be necessary to do exactly that. Funny, huh? And yet, if the term “bicycle” was left undefined, you would be hard-pressed to argue to the court that it included motorcycles. > [@ElvisL1ves](#): > > Very possibly, yes. You have no reason to know the contrary, despite your once again substituting scorn for argument. I have no reason to know the contrary? Are you serious? Are you seriously arguing for the possibility of legislators from several decades past having a more englightened view of gay marriage than today? Good heavens, what planet do you live on? > [@ElvisL1ves](#): > > Can _you_ say “with a straight face”, that the law is and has always been crystal clear, and that the rational basis for it is also clear, \*without a single damn word of it being written down anywhere \*? Well, yes. Even the [Massachusetts Supreme Court](http://www.glad.org/marriage/goodridge_decision.pdf) (warning: PDF; see p. 6) had no problem ruling that the statutory definition of marriage in that state only meant man-women unions, even though the Massachusetts marriage statutes are silent on the issue: > [@The Massachusetts Supreme Court](#): > > In short, for all the joy and solemnity that normally attend a marriage, G.L. c. 207, governing entrance to marriage, is a licensing law. The plaintiffs argue that because nothing in that licensing law specifically prohibits marriages between persons of the same sex, we may interpret the statute to permit “qualified same sex couples” to obtain marriage licenses, thereby avoiding the question whether the law is constitutional. See School Comm. of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79 (1982), and cases cited. This claim lacks merit. (Emphasis added) So spare me. Even the court that is arguably the most gay-marriage friendly in the country says the ambiguity argument is a stupid one. > [@ElvisL1ves](#): > > And with no post-hoc rationalizations that pass even a minimum test of, um, rationality being articulated even today? Talk about the “giggle test”. Your handwaving is certainly worth giggling at. Again, I don’t think you realize just how low the rational basis bar actually is. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [November 27, 2004, 9:45pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/248 "2004-11-27T21:45:47Z")
> [@Gorsnak](#): > > Actually, I think **Homebrew** is trying to point out that legal definitions are usually made explicit, even when the words being defined are common and ordinary. I agree with this. But it isn’t always the case; there are plenty of statutes out there that don’t define every little word used therein. Could those statutes be better drafted? Sure. But that doesn’t mean you get to play “gotcha!” with latent ambiguities. > [@Gorsnak](#): > > But there is a counterpoint here as well, and it’s not like **DMC** is away out in left field. If the legislators who rushed to explicitly define marriage following the court decision in Vermont (or Hawaii, or Alaska, or Massachusetts) truly believed the implicit definition of legal marriage as heterosexual in nature had the same legal force as the implicit common law tradition, they wouldn’t have bothered with their explicit definitions. And the counterpoint to that counterpoint is that if the courts are mis-reading the statute in the view of the legislature, it is entirely acceptable for them to pass clarifying amendments. That doesn’t mean the original statute envisioned something different; it just means real-world events have required making things clearer. This happens all the time in less politically-charged situations (say, the implementation of a tax provision). > [@Gorsnak](#): > > I’m not entirely sure what the significance of the point is, though. The bare fact that a group of people has historically been barred from participation in a social institution doesn’t constitute a reason to continue barring them. The grounds on which they’ve been barred in the past may, if they’re actually reasons, but the _mere_ fact of tradition isn’t a reason of any sort whatsoever. That’s not a legal statement, that’s a statement based on my best understanding of what constitutes a reason. But none of that changes the fact that legal recognition of gay marriages would be overturning tradition. I believe all the Canadian decisions on this matter have been quite explicit in stating that they’re overturning the common law tradition. Well, sure, and as I’ve stated before, I think from a policy point of view the country ought to move toward gay marriage or something like it. But what we’ve been discussing, in part, are things that satisfy the rational basis test, and for purpose of that test, tradition is an entirely acceptable and sufficient way to sustain a piece of challenged legislation. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [November 27, 2004, 9:47pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/249 "2004-11-27T21:47:09Z")
> [@Dewey Cheatem Undhow](#): > > And yet, if the term “bicycle” was left undefined, you would be hard-pressed to argue to the court that it included motorcycles. Sure, but it doesn’t seem terribly implausible that you might convince a court that the definition covers something like [this](http://www.walmart.com/catalog/product.gsp?product_id=882975&cat=61903&type=21&dept=4171&path=0%3A4171%3A61903%3A61904%3A4180%3A4183%3A5297), say, if it was a law restricting vehicular access to bicycle paths in the park. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [November 27, 2004, 9:54pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/250 "2004-11-27T21:54:58Z")
> [@Dewey Cheatem Undhow](#): > > But what we’ve been discussing, in part, are things that satisfy the rational basis test, and for purpose of that test, tradition is an entirely acceptable and sufficient way to sustain a piece of challenged legislation. I’m not going to dispute that this is in fact the case. But it is on the face of it a ridiculous statement, since it essentially means that if you can just get away with your unconstitutional law long enough, it will magically become constitutional in virtue of the fact that it’s now traditional, and hence will pass the rational basis test where it wouldn’t have otherwise. What this means is that the courts _are_ taking the bare fact of tradition as a reason. This offends my logical sensibilities, not that I should expect many people would care about that. 😛 ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [November 28, 2004, 12:09am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/251 "2004-11-28T00:09:47Z")
> [@ElvisL1ves](#): > > Please cease the weaseling. It does neither you nor the legal profession any good, especially after your earlier acknowledgment that you knew what I meant even before that imputation. Nope, I said no such thing. I said your logic regarding equal protection claims was faulty, and I used a particular application to show why. Talk about your weaseling. You honestly think you can make any claim, wave your hands hysterically, and that somehow makes your argument stronger. Whatever. > [@](#): > > That makes your statement, repeated here, that it is “my” logic a lie as well as a slander, and your demurral continued well-poisoning. You are either beyond the capacity for rational thought as it relates to this issue, or _you_ are lying. It’s difficult to think this kind of grandstanding with no basis in fact isn’t deliberate. Perhaps you really are as bad a debater as you seem. Tell you what, champ, why don’t you call in a mod. If I am actually perpetrating slanderous lies, that ought to be grounds for banning. Why would you stand for such a thing? Go on, I encourage you to. Honest to God, it is posters like you, with your insulting, baseless horeshit in response to reasonable debate, that has degraded this board over the last couple of years to the point where it is a chore jumping into a thread, anticipating the vile spray of lying, blind PC chauvinism that one is apt to get splashed with. > [@](#): > > Even in the alternate universe where your description of that logic were accurate, there was no enlightenment to be had in use of that illustration. But your level of credibility, both factual and personal, is entirely up to you. If that isn’t worth getting upset over, then what is? Do you think you can say whatever you want, and, if anyone objects, just tell them “Don’t be so sensitive, sheesh”? Doesn’t work that way. No, I think I can provide logical arguments and clarify them where that may be needed. I harbor no illusions that I will receive comparable responses, however. You are a weak, dishonest debater, and I should have known from prior exchanges. Why bother. Feel free to work yourself into a self-righteous lather. > [@](#): > > If you’re not “pro-discrimination”, btw, then you might stop arguing the pro-discrimination side, now that it is (or should be) clear that that is fundamentally what it is. Your objection to the term is not only “hypersensitive” (ironic, huh?) but baseless. Classic Elvis bullshit! Anyone who disagrees with him is on the side of evil–fucking incredible! There’s no possibility of honest disagreement. If you think I’m getting into an endless exchange with someone incapable of honest debate, forget it. What’s nice is that this is a written exchange, so we can leave it to anyone who cares to read to decide whose credibility has taken a hit in this thread. Take this as your cue for another hissy fit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 28, 2004, 1:24am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/252 "2004-11-28T01:24:12Z")
> [@Blalron](#): > > Using a similar line of logic, I reject the arguments used in favor of the “protection of marriage” amendments (such as encouraging procreation) as being implausible. What exactly, are they protecting marriage from? The answer, of course, is homosexuals. Any other excuse is merely window dressing to disguise one’s prejudices. Of course, the Court could rule as you say. However, all indications are that they will not – at least the current Court has not shown a willingness to extend “implausible” to rationales such as preserving the tradtional societal institution and encouraging procreation. Simple thought experiment: if you could place an equal protection same-sex marriage case on the Supreme Court’s docket right now, would you? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 2:30am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/253 "2004-11-28T02:30:03Z")
> [@Bricker](#): > > Simple thought experiment: if you could place an equal protection same-sex marriage case on the Supreme Court’s docket right now, would you? Yes. The election is over, and I think the chances of a favorable same sex ruling is at least as good as a coin toss. Justice Scalia apparently fears it, since he listed same sex marriage among his parade of horribles that will ensue after _Lawrence_. Any “backlash” that might ensue has two years to die down. And if the Court upholds the same sex marriage bans, the only thing that will happen is to leave in place the anti-gay marriage regime in 49 States. It’s worth a shot. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 2:40am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/254 "2004-11-28T02:40:38Z")
Add to this, I believe that once gay marriage is legalized nationwide, we’d largely grow to accept it. So even if the decision is reversed later down the road by a more conservative court, most states would choose to still allow it rather than strip thousands of their citizens of rights they already have. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 28, 2004, 3:22am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/255 "2004-11-28T03:22:51Z")
> [@Blalron](#): > > It’s worth a shot. Well, so far as I can tell, leading gay rights activists are not in agreement. They seem to be advocating that test cases stay away from federal claims and explore only claims under states’ constitutions. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 3:50am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/256 "2004-11-28T03:50:37Z")
> [@Bricker](#): > > Well, so far as I can tell, leading gay rights activists are not in agreement. They seem to be advocating that test cases stay away from federal claims and explore only claims under states’ constitutions. _shrug_ Well, you got to walk before you can run. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 28, 2004, 3:59am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/257 "2004-11-28T03:59:57Z")
> [@Blalron](#): > > _shrug_ > > Well, you got to walk before you can run. I don’t believe that is their rationale. I believe they are evaluating their chances of getting an unfavorable federal ruling as unacceptably high. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 28, 2004, 4:10am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/258 "2004-11-28T04:10:45Z")
> [@Bricker](#): > > I don’t believe that is their rationale. I believe they are evaluating their chances of getting an unfavorable federal ruling as unacceptably high. Possibly, but I still think the issue is up in the air. I think the Court doesn’t want to go there even if they did have a chance to take it up. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 28, 2004, 6:17am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/259 "2004-11-28T06:17:05Z")
> [@DMC](#): > > What’s not incontrovertible is exactly what the legislators intended with regards to marriage, **other** than what they actually codified. It’s quite possible they didn’t conceive of two men attempting to marry. If so, then there is nothing illegal about two men doing so until it’s codified. Until recently, it wasn’t. As far as I’m know, assumptions are not legally cognizable. Feel free to give me the lawyerly take on that. Heck, do it from a strict constructionist standpoint for fun. Oh my. Do you not see that your entire post supports anti-“SSM” legislation? The states are free to permit (or deny) marriage rights, outside any realm covered by the Constitution, so you have it? “There is nothing illegal about two men [marrying] until it’s codified.” Quite true. And every state so codifies it as illegal, until Mass. Likewise, and inevitably, then: “There is nothing illegal about two men [not being allowed to “marry”] until it’s codified [in the Constitution].” Q.E.D. , in at least the other 49 States, “SSM” is illegal, full stop. No problem, no Constitutional conflict. Honestly, I don’t think (just for your sake) that people should tinker with constitutional interpretation until they understand the possible consequences of their “logic.” But hey, thanks for the assist. But hey, that’s just one man’s opinion; bring on the laymen’s learned constitutional interpretations, if they wish. How are they faring against **Bricker** and **DCU** , again? ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 28, 2004, 8:56am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/260 "2004-11-28T08:56:53Z")
> [@Homebrew](#): > > 1975 Two gay men in Phoenix legally obtain a marriage license and wed before the county attorney can file an injunction against them. (It is later declared void.) > > Also in 1975, A Boulder, Colo., county clerk issues a marriage license to a same-sex couple that tells her they’d been denied one in another county. Word spreads, and she issues licenses to about a half-dozen same-sex couples before the state’s attorney general deems the unions legally void. > > Until the action voiding them, they must be presumed to have been recognized. I admit that’s slim; but your question is really irrelevant anyway. “It’s always been that way” is not a sound social policy. So . . . the action of deceived or rogue ministerial employees, subsequently and definitively disclaimed and denounced by their principals, has precedential value? Much more importantly . . . your proposition that precedent is not “sound social policy” is a very interesting one, but one that is contrary to the entire Anglo-American common law. Just so’s you know, and what not, as far as the burden you’ll bear in applying this unique and individualistic view of the non-applicabiliaty of prior conduct in adjudicating and evaluating laws under the Anglo-American jurisprudential paragidm. [Previous page](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565.md?page=12) [Next page](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565.md?page=14)