Which ones are the ‘activist judges,’ again?

Virginia Centrist has a post up about the Ohio court ruling that the Ohio version of the Marshall-Newman amendment prohibits the application of domestic violence law to unmarried people. This immediately elicited comments complaining that this strict constructionist reading of the amendment is an example of “legislating from the bench.” Even more hilariously, one of them is from a local anti-gay activist who routinely claims that marriage equality advocates “don’t understand the English language.”

Here is my comment:

This is just hilarious – not the ruling itself, but the complaints from the anti-gay right that the court is “legislating from the bench” by reading the amendment exactly as written.

The court in this case has in fact refused to legislate from the bench, which is infuriating to people who wish to cloak their anti-gay animus in legal terms. If we were actually talking about a “gay marriage ban” we wouldn’t be having this conversation, but, just like with the Virginia Marshall-Newman amendment, the authors of the Ohio amendment wanted much more than that.

They were unable or unwilling to articulate clear boundaries around what they were trying to accomplish, and expect that the courts will now step in and do it for them. This court correctly read the amendment as having no logical stopping point, and ruled accordingly. Like the Virginia amendment, it is very poorly drafted. The terms seem to be deliberately undefined, in the hope of casting the broadest possible net. The Ohio court explains that “the evident purpose” of the amendment is exactly to prohibit the indirect recognition of all quasi-spousal privileges that are not enumerated, and that “the list is endless.” You can read the excerpt here.

The truth is that both amendments are intended to have these broad effects, such as rendering health insurance coverage for domestic partners illegal. It is disingenuous in the extreme to draft deliberately vague language with that intent, and then expect the courts to interpret this vague language in accordance with the political objective that the authors couldn’t/wouldn’t articulate for themselves (but not in a way that looks too bad, please).

Because, of course, had they articulated it honestly, the people wouldn’t have voted for it.

To add a little humor to the mix, we now have apologists for this debacle complaining that a strict constructionist reading of this amendment is somehow “legislating from the bench.” I would say that now I’ve seen everything, but it’s probably not true.

To help defeat the Marshall-Newman amendment, visit www.voteNOva.org.

The Equality Loudoun post on this ruling is here. VC, better late than never.

There is also discussion of the amendment up at Virginia Ramblings, to be continued..

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