More judicial legislation? (I know I didn’t pay attention much in my high school gov’ment class, but…)

Anyway, here’s the story from the SF Chronicle.

Gay and lesbian couples in California have a constitutional right to marry, a San Francisco Superior Court judge ruled Monday.

The ruling by Judge Richard Kramer is just the first step in a case that is headed for the state Supreme Court, probably sometime next year. But it marks the first time that a California judge has declared unconstitutional the state law that defines marriage as a union between a man and a woman.

The Jawa Report headlines it with “Judge rules constitution unconstitutional”

Ace of spades says that letting “the states” decide about marriage does not usually mean “the judges in those states.”

Wizbang’s Kevin: Gay marriage will be imposed not by the peoples representatives, but via the bench.

RightPundit compares it to the old marching band joke.

Vote for Judges thinks this emphasizes the need for term limits, with a discussion of the SCOCA make up and why it is the way it is.

Stones Cry Out asks: “aren’t they supposed to default to case law even if they disagree with it? I thought the Supreme Court of California was the appropriate place to review the constitutionality of historical interpretation of case law or legislation passed by the legislature or initiative”

James Joyner reluctantly thinks it’s time for a constitutional ammendment: “Given that judges are overstepping their bounds and imposing their policy preferences, though, it appears the only recourse that the public has.”

Prestopundit says the robed ones are saying “I make the laws in this state, your job is to shut up and follow the laws as I pull them randomly out of my…” well, you can read the rest yourself.

Gay Orbit says this whole Judicial activism thing is just a bunch of buzzwords to get conservative readers in a frenzy.

The Faerie Wizard says: “Does that mean segregation and Brown V the Board of Education are also on the list of acts of judicial activism waiting to be corrected? Same goes for the rulings allowing inter-racial marriage.”

Len also picks up the segregation theme when pouncing on the judicial activism mantra: “If we had waited for this so-called democratic process, what do you think would be the status of school integration in the southern states today? Would white people still be drinking from fountains marked “Whites Only?” Would interracial marriage still be illegal?”

And lots more from around the blogosphere.

UPDATE: Scalia weighs in, sort of.

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling March 1 to outlaw the juvenile death penalty based on “evolving notions of decency” was simply a mask for the personal policy preferences of the five-member majority, he said.

“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”

“Why in the world would you have it interpreted by nine lawyers?” he said.

UPDATE 2: Eugene Volokh has a look back at some of the screeching when the ERA was initially being discussed.

Yet it now looks like the “hysterical” “emotional scare tactic” “canards” may well have been quite reasonable predictions: It looks like courts are indeed treating opposite-sex-only marriage rules as involving sex classifications, and as thus being presumptively unconstitutional. Had the ERA been enacted at the federal level, it would have further raised the bar against sex classifications, and thus made decisions like the California and Massachusetts one more likely.