And please, PLEASE drop the rhetoric of “activist judges” opposing the will of the people: in essence, the judiciary is not meant to rule for or against the current will of the majority, but instead rule completely apart from the current will of the people.

The real divide is between stare decisis judges and correction oriented judges.

The biggest problem with making “corrections” is that it leads to those on the “wrong” side believing that the social covenant has been breached — that a change has occurred without the accepted process for change being engaged in.

As a lawyer in Texas I’ve seen a lot of that (going both ways) in the courts. Corrections … never ending in this state, going both ways.

But yes, an activist judge is one who changes the law, generally to fit the “will of the popular” people rather than the will of the people who want things to say the same.

If there were an inevitable force of history, that might make some sense. But social trends ebb and flow.

The rhetoric is fair many times, unless you are opposed to the will of the unpopular, unwashed majority and in favor of either the force of history or the necessary corrections (which is what the changes are called when they go back the other way).

On the other hand, using it just as a label for someone you disagree with is silly.

Bottom line: in the gay marriage context, judges who are going against stare decisis to create change are doing it, generally, citing the evidence of the will of the people in related measures (e.g. using civil unions as a reason to prove that gay marriage is appropriate) to overturn the general will of the people in order to create a better world now, rather than wait for the people to catch up.

Should they? Well, if the people’s will really is flouted, then you just impeach judges (cf California and the death penalty). Otherwise the will of the people obviously wasn’t that strong. If your judges are all appointed rather than elected, then real impeachment (rather than just voting them out the next election) is your only choice, and I would disagree with saying it is wrong.

The fact that it doesn’t happen reflects, I think, that the will of the people against whatever the judge did wasn’t as strong as some might think.

queuno, I think you nailed it.

I see the tone that most of the prop 8 debate generated on both sides as very bad sign for our country. It is a good thing we already have a constitution because if we had to come up with it today we would look very much like the middle east. We have gotten to the point that compromise is evil. Just listen to the tyrants like Hannity and Limbaugh or most of the Hollywood activists like Clooney and many of the Gay activists.

Just read #4 to see an opinion that even if you do agree with much of what Jon says I can’t see him accept any form of Gay marriage under any circumstance. No compromise leads to civil wars or turmoil. Just look at what happened in California in November.

It is not a comfortable thing to see one’s own ignorance, but I think it is important to recognize that even some of the most informed of us are largely voting ignorantly, with little idea of the effects of our votes on other aspects of government.