The California marriage ruling raises many issues, but three are worth of underlining. They also were covered in some form in Glenn Greenwald's columns, including on Thursday, and different columns this week at Findlaw.
First, the differences of state constitutions from each other and the federal constitution. The emphasis, including in these quarters, on the federal courts, particularly the Supreme Court, should not let us forget about the states. Surely not when things like free speech, searches and seizures, gun control and privacy rights are often quite different in those quarters. Not only does the California constitution have an express "privacy"* component, but it is much easier to amend. Thus, unlike the federal constitution in particular, "judicial fiat" is much less set in stone, no less concrete.
The 1940s interracial marriage ruling held that marriage was a federally protected civil right, but a later amendment to the state constitution cemented this by adding "privacy" to the protected liberties. A word that past court precedent, still controversial in some circles, held covered questions related to marriage, childbirth and the like. States like Florida also have such a provision. OTOH, Hawaii amended its constitution to clarify barriers to same sex marriage were not violations of gender equality etc. per its own constitutional requirements, after a state court implied the old one did.
Second, to the degree the courts do override immediate popular will, it underlines that we live in a republic, just like the Pledge of Allegiance says. In a "republic," certain institutions secure rights and so forth beyond the simple process of a majority of the people at large doing the trick. This might be junior high grade civics (h/t GG), but like saying prayers and other things often said by rote, it is quite true that many still do not quite take seriously what they allegedly repeatedly pledge. The system is imperfect and leads to troubling results, but ignoring that it was set up in this fashion for a reason is troublesome as well.
Finally, this does not necessarily mean criticism is wrong. First, state court action does have force -- even in California, it is hard to override court action, though it does occur from time to time (e.g., a few judges loss their jobs via recall after handling down some liberal leaning death penalty decisions). Such times can be raised up as possibilities, and they are, but they are somewhat far and between. Cf. The complications involved in overriding statutory interpretation rulings by federal courts. They also have influence -- look at what 'x' court did and the sky didn't fall. Or, look at what 'x' court did, why shouldn't we too? Finally, the ability to overrule popular will, the obligation in various cases even, does not mean we should take it lightly. Cheap shots when it occurs, notwithstanding.
Such things should all be kept in mind -- as with the fact rejecting an application (same sex marriage) is not the same thing as rejecting everything that goes with it (some degree of special scrutiny of limits on rights of same sex couples) -- even if the people of California decide to amend their constitution to overturn the result of the opinion. And, set forth principles that apply in much less controversial (and/or liberal friendly) cases.
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* Talking about privacy rights ... A character in aforementioned The Amazing Mrs. Pritchard had an abortion. The pregnancy was a result of a relationship with a much younger man, she was in her forties, and had a top position in the British government. She was formerly a Tory, so also might have had socially conservative views on the issue, though had a fiscal role in the administration.
Right after finding out she was pregnant (she apparently didn't really consider she was until her assistant suggested the idea), the same day, she rushed to have an abortion. She was eight weeks along. Cf. the teen in Degrassi, who contemplated the issue, including letting her liberal leaning, if anti-abortion friend, in on her plans. Or, the usual woman. Afterwards, she was emotional -- no shock, given all she was keeping bottled up, including her true feelings for the father (who wasn't told beforehand).
I appreciate that the subject was raised, but yet again, one must say not very well. If better than usually the case -- she actually had one after all -- than in TV/film in the states.