Wednesday, July 19, 2006

Jittery Judges on Both Coasts

Washington State's delay in coughing up its same-sex marriage decision could be as simple, as primal as the judges saving their elected butts. While we hope not, the same could be said of the recent high court SSM-related decisions here.

Here in America's upper left, the dance floor has the numbered footprints. Our appointed judges are suffering a failure of will and morals. The Washington Supreme Court is an elected body. Its members must be politicians as well as jurists.

In the upper right corner, we saw a powerful and clear ruling in favor of civil rights and equality in the Goodridge decision three years ago by the SJC. Subsequently on related issues, those same justices have:
  1. Decided that it was okay for our governor and attorney general to enforce suddenly two 1913 anti-miscegenation laws to keep out-of-state gay couples from marrying here.
  2. Focused on a narrow point of law to allow the current anti-SSM amendment to proceed, claiming it was not trying to overturn an SJC decision.
From the outside, the SJC has returned to its skittish, nelly behavior. Even though the justices are appointed, not elected, they seem to have reacted to the years of scolding from the self-identified religious right and our POTUS-envying governor.

Their recent decisions have been cowardly and not in keeping with the strong statements favoring human rights, fundamental freedoms and equality. Instead they showed the kind of incrementalism and lukewarm support for the public weal that brought us separate-by-equal public facilities and similar foolishness. In such cases, other leaders and branches of government were honest and brave in place of the faint hearted courts.

Could it be that the SJC had only on flare of activism in it? Having exhausted that, must it slink back to its wishy-washy self?

The recent judicial trends here remind us of Dylan Thomas sad character in Under Milk Wood:
Alone until she dies, Bessie Bighead, hired help, born in the workhouse, smelling of the cowshed, snores bass and gruff on a couch of straw in a loft in Salt Lake Farm and picks a posy of daisies in Sunday Meadow to put on the grave of Gomer Owen who kissed her once by the pig-sty when she wasn't looking and never kissed her again although she was looking all the time.
Even the Boston Globe's often regressive Joan Vennochi wrote that the SJC "are bcoming much less activist." She says their deference to anti-gay forces such as Cardinal Sean O'Malley and former anti-gay/now nominal SSM supporters like Attorney General Tom Reilly is understandable after the post-Goodridge hooha.

In addition, "A bare majority of the SJC backed what amounted to a cultural earthquake. The aftershocks may have strengthened the internal hand of dissenting justices."

The solidly good guys still include the likes of Greaney and Ireland, but waffling by Chief Justice Marshall and conservative leading by Cordy and Spina may make another pro-equality ruling very hard to come by. Where the issues were not extremely clear-cut, the SJC has been screaming "Status quo!"

Back to Olympia, the Washington Supreme Court has been sitting on their ruling for nearly a year and one-half. after SSM arguments. The case is similar to Goodridge, it asks Whether RCW 26.04.010(1) and RCW 26.04.020(1)(c), in prohibiting marriages between two persons of the same sex, violate the Washington Constitution.

The decision could come any Thursday, when the court there issues any decisions. Yet, chatter suggests it will come after the election.

There are nine justices there, with staggered six-year terms. This year, the Chief Justice Gerry Alexander, and associates Tom Chambers and Susan Owens are up for reelection.

It is easy to look 3,000 miles away and say how sleazy that would be if the judges waited utnil after the election. That is what the anti-SSM forces here are screaming about the delayed voting on the anti-SSM marriage amendment. Apparently everyone is shocked, shocked to find politicians being political.

We can well ask whether removing a decision from the voter's immediate scrutiny is any worse than self-throttling as our SJC has done. I think not.

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