“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”

If they overturn Prop 8, then California is governed by judicial fiat. It is that simple.

Exactly. However, unlike the SCOTUS, California judges do undergo retention elections every ten years. Three of the justices come up for vote in 2010. And that is one vote they can’t overturn. I’m hope they’re weighing that in their minds even if the litigants are trying to avoid threatening them while the case is in argument.

I don’t think we have to worry much about the freak groups, since unlike the gays, they don’t have enough political thug muscle to get their way. And since the May decision was result-oriented jursiprudence (what I refer to as bootstrapping), where they twisted the law to achieve their desired outcome, the court should have no problem drawing whatever lines they wish, consistency be damned. Though the court may have a real problem enforcing current consanguinity restrictions on marriage when that issue comes up.

However, one of my principal purposes in writing this was to explain how the court by one act of judicial overreaching (creating a right to gay marriage) started down a slippery slope that forces them to now decide whether to continue down that slope or whether to bail out. They have to make a decision, and live with the cheers and jeers that will result – as well as the other actions that those on the losing end of their decision may engage in.

The other aspect was that I personally don’t think that constitutions should be amended by simple majority of the popular vote. This destroys the character of the document by the myriad of specialized accretions from various votes and facilitates judges taking a liberal interpretative approach to it, since it is so easy to change.

It also weakens the legislative brance and encourages them to abdicate their responsibilities for making tough decisions, which leads to badly crafted and hand-cuffing laws via initiative (since they require another vote for anything but tweaking) and encourages expansion of judicial power into the vacuum left by a cowardly legislature. I would limit plebliscites to statutes, not constitutional amendments.

Which is why in a vacuum, I would have had mixed feelings about Proposition 8: since I believe that marriage laws are a matter of legislation, not constitutional rights, I would normally oppose taking that issue out of the hands of the legislature. However, in the current environment of judicial overreach, I had no mixed feelings in choosing to override the court.

The irony is that if gay activists had not gone to courts around the nation to get courts to impose gay marriage, the California legislature would have approved gay marriage already and that there would not have been the support to overturn it via referendum. And the CA legislature already has provided gays with equal treatment via domestic partnerships.

However, the gay activists weren’t satisfied with equal protection; they wanted the imprimatur of societal approval of their sexual practices by capturing the label of “marriage” – and they wanted this imposed by the court rather than winning hearts and minds until they got a legislative majority – and thus have evoked a backlash in California and around the country.