You are entirely correct that homosexual marriage does not exist in the California Constitution. But this is the interesting thing about constitutional jurisprudence in the United States, it lies somewhere between the (non)constitution of the UK, where what’s done and what simply isn’t done constitutes the polity, and the civil law constitutions of continental Europe wherein the the structure is set more explicitly. We have a “principled” constitution where the values of the state are set but the work of defining substantive rights is vested in the judiciary. Thus a great deal of what we call our constitutional rights come from decisions rather than explicit precepts in the constitution. That’s just “common-law” jurisprudence.
There are advantages and disadvantages to our system, but that said, it is emphatically our system. Terms like activism or tyranny are ideological in their deployment. We have always had and must have activist courts. It’s in both the design and the tradition of our institutions all the way back. So the measure of a court is not whether it is activist or not, but whether it nuanced and wise enough to make its decisions conform to both the norms of jurisprudence (the illusion of precedence and positivism) and to the deepest principles of the polity (court as oracle of the national conscience). (The Burger Court did neither, Rehnquist and Warren where geniuses in keeping this balance.)

many more things to reply to, but thanks for the thoughtful comment. I’m always ready from a bit of well-meant sparring.

I’ll be writing on “judicial activism” and the dissenting opinion in the next week or so.

EP

I agree that there is something shady about judicial activism. But the State of California (as of recently) is in a majority about this issue (ie will of the people says go). Maybe a better question is what happens when Christian culture becomes the culture of a minority? Should state and church remain tied, even when culture has long since divorced itself from church teaching? If so, isn’t this a different kind of tyranny?

Of course, one must vote as one would hope the state to be, not as it is inevitably.

People who are politically conservative tend to judge things as morally offensive and wrong based on how much those things elicit feelings of disgust. Liberals, although they feel the same amount of initial disgust, will adjust their feelings post-hoc using the principle of harm. Basically liberals think that if an act does no harm to anyone else, then it is in fact not morally offensive (there’s an interesting study involving sex with chickens that backs this up, but I won’t go into the details here…)

I think the reason same-sex marriage proponents get frustrated by the whole issue is because they are trying to use rationality to argue with people who are making an emotional decision. If you feel homosexuality is wrong, then no argument will be sufficient because you think it is wrong at your gut level.

By the way, I hope this doesn’t come across as conservative-bashing…I find it interesting that research shows that EVERYbody finds homosexuality initially repulsive–its just whether or not they correct for their feelings in the end that contributes to their political feelings on the matter.

DiverCity

New Polity, your understanding of constitutional law is misguided. I well addressed the tyrannical nature of the California Supreme Court’s ruling in my earlier post here, to wit, the right to homosexual marriage does not exist in the California Constitution. This, again, is the tyrannical aspect of the decision and all such decisions which locate such rights within the shadows of the constitutional text in order to effect nothing more than social policy. No, New Polity, you have imbibed at the well of liberalism and its necessary corollary that the Constitution is organic and must change to fit the tenor of the political times. This once more illustrates the perniciousness of the ever-moving “rights” target. Of course, perhaps like you, I was taught that the will of the majority cannot trump the Constitution, and that’s okay as far as it goes. But we’ve gone WAY, WAY beyond that point in constitutional jurisprudence in America. This, Mr. Polity, is the tyranny of the judiciary.

BTW, Greg and I have a history here, and my comments to him are not as mean-spirited as they might initially appear. I generally find him good-natured, but like your understanding of con law, misguided.

DiverCity

I’m working on a post that traces the current dilemma – the unruly and wholly unreasonable rise of determination and arbitrariness as the ruling paradigms in philosophical anthropology – back to exactly the univocalist turn you mentioned in your comment Chaz.

But that leads me to ask: Consider why you connect arbitrariness, art, ex nihilo creation and the act? Thomas and Dionysus would not have found it obvious that man’s lack of autonomy amounts to a lack of agency, or that true agency entails arbitrariness. These are connections that burgeon out of the univocalism of William of Ockham and the aptly named Duns Scotus (dumb Scot), which flowered in the Enlightenment, found their home in Scientific practice, and since then have not ceased from visiting veryveryvery bad philosophy upon mankind.

For the univocalist being is being is being, but in his wisdom Aquinas points out the obvious – each thing exists in its own manner (i.e. god, man, nature…etc. all exist in unique ways.) Taking this back to what you (and AJF) were talking about: identifying the artistic act as arbitrary because it rises above context (i.e. is not fully determined by context) appears to me to be falling into the univocalist dilemma wherein everything is either fully determined (paradigm:nature) or not determined at all (paradigm:arbitrariness/paradox). But this opposition is unfitting for us – people in general that is – who are agents, but not autonomous; free, but in context; always creating, but from somewhere, not ex nihilo.

I submit that much of this trouble with art and “who am I” and “where has truth gone” (yes, it affects epistemology as well) derives from theorists trying to tell man that he is something that he isn’t – i.e. that he is just like everything else.