Judicial Activism and what does it mean to judge? Government 101

Cries of judicaial activisim are raising up in Texas.  But is it really activism?  Perhaps it is good judicial review of an unjust law?

Dallas Judge Shoots Down Texas’ Ban on Gay Marriage – Law Blog – WSJ

Nevertheless let’s look at first our government and then our judicial process – maybe we can come to an informed decision ourselves.

Branches of Government

There are three branches of government (3):  Executive, Legislative, and Judicial.

Executive: the branch of the United States government that is responsible for carrying out the laws wordnetweb.princeton.edu/perl/webwn

Legislative: The branch of government which is concerned with the making of laws

en.wiktionary.org/wiki/legislative_branch

Judicial: the branch of the United States government responsible for the administration of justice

wordnetweb.princeton.edu/perl/webwn

Focusing in on the last one, it is the duty of a judge to administer justice.

Justice:

• the quality of being just or fair
• judgment involved in the determination of rights and the assignment of rewards and punishments
• judge: a public official authorized to decide questions brought before a court of justice
• Department of Justice: the United States federal department responsible for enforcing federal laws (including the enforcement of all civil rights legislation); created in 1870
  
  wordnetweb.princeton.edu/perl/webwn

So how does a judge administer justice?

The Judicial Process

Article III of the Constitution of the United States guarantees that every person (note the word every) accused of wrongdoing has the right to a fair trial before a competent judge and a jury of one’s peers.

The Fourth, Fifth, and Sixth Amendments to the Constitution provide additional protections for those accused of a crime. These include:

• A guarantee that no person shall be deprived of life, liberty, or property without the due process of law
• Protection against being tried for the same crime twice (”double jeopardy”)
• The right to a speedy trial by an impartial jury
• The right to cross-examine witnesses, and to call witnesses to support their case
• The right to legal representation
• The right to avoid self-incrimination
• Protection from excessive bail, excessive fines, and cruel and unusual punishments

For this case, the type of court is relevant, since it is not a criminal case but a family dispute.  The participants in the legal actions are married and must seek out resolution in a family court.

Family Court

A separate court or a separate division of the regular state trial court, that considers only cases involving family-related issues, which could include divorce, child custody and support, guardianship, adoption, and the issuance of restraining orders in domestic violence cases.

Problem?

According to the voters and to the Texas state constitution, marriage is only defined as between a man and a woman.  However, the rules of our country state we all have equal protection.

So what does that mean?

“The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that “(n)o state shall … deny to any person within its jurisdiction the equal protection of the laws”.[1] The Equal Protection Clause can be seen as an attempt to secure the promise of the United States’ professed commitment to the proposition that “all men are created equal“[2] by empowering the judiciary to enforce that principle against the states.”

This is very important.  Because these men, were legally married outside of Texas, but with the way the law is now their marriage was null and void upon stepping on Texas soil and living there.  By not protecting these men and their right to resolve a judicial dispute, they are not being given equal protection.  In doing so, the laws and the state are saying, without words, that these men are not equal to every other citizen in the state of Texas or beyond.

Not equal. (please make a note – this is important)

BUT we are guaranteed by the constitution of the united states that ALL men are created equal and that all citizens will have equal protection…. and THAT my friends is just one very big reason why denying gay and lesbian adults the right to marry is deplorable.  They are citizens, they are just as productive as their heterosexual neighbors, they are not second class – there is NO compelling evidence that orientation will lead to any number of other ridiculous and heinous acts.  There is also no compelling state interest in preventing such contracts and the dissolution there of should they choose.

Conclusion

My conclusion, the judge is simply calling out an unjust law and using common judicial sense and supporting national law to do so.  Which is her JOB… in making sure the courts administer justice.

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I hope these men win their divorce and people take a long hard look at why they have decided to exclude a group from equal protection and equal application of the law.

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