I whole-heartedly disagree with this statement. The passage of laws, the conveyance of rights, and the definitions and limitations of those rights rest firmly in the legislative branch - it was through a legislative process that our Constitution, the ultimate definition of rights and governance of those rights, was created.
And who voted for the members of the legislation that created our Constitution? The members of state assemblies and legislatures, generally, a process which identically mirrors our constitutional method of selecting judges at the federal and (in some places) state level. Many of our Founding Fathers went on to become judges. Further, the concept of the judicial branch as a check on the legislation's passage of laws dates all the way back to McCulloch v. Maryland, a case whose impact on American legislative history has been so profound that you literally would not recognize this country today had the decision gone the other way. Any attempt to undermine the right of the judicial system to correct and reverse the legislative is an attempt to hollow out our system of government.
I can not think of a single case of judicial legislation that I can whole-heartedly support, because despite the good intentions of the judge, it undermines the legislative process.
You're straining my disbelief here - Brown v. Board of Education, Gideon v. Wainwright, District of Columbia v. Heller? It doesn't matter what political corner you're in, you've got to appreciate at least one of those cases of "judicial legislation", a term that drives me nuts because of its meaninglessness.
Hell, I will ask straight out - what do you not
like about Brown v. Board of Education? I'm really curious to know.
Your example isn't a terribly good one either, as any law attempting to strip Islam of it's status as a religion would have been struck down on the basis of discriminating against a religion (part of the constitution).
Oh God, oh God, oh wow.
Okay. The Federal
Constitution applies to the federal government only
. So if California wanted to ban Islam, California could have done so
- until 1947! Yes! Until 1947 California could make it illegal to be Muslim, Jewish, Hindu, atheist, or Christian.
What happened in 1947? Everson v. Board of Education! 330 U.S. 1 (1947) is your case citation, if you care to look it up - heck, here
is a Wikipedia link. That's right - nine snotty black-robed judicial activists made it illegal to discriminate on the basis of religion at the state level, because of the "equal protection" clause, ninety-nine
years after the 14th Amendment was passed!
In fact, since the 14th Amendment (God bless it) was passed in 1848, the judicial system has been gradually "incorporating" it, i.e., making it binding upon the states. There are still rights in the Constitution that the states are not obligated to give to their citizens - for instance, if you are living in the United States but not under the jurisdiction of the Second Circuit of Appeals, the state government can house the National Guard in your house! Like, today! In blatant violation of your Third Amendment rights, no less.
Certain rights will never
be incorporated - Hurtado v. California, for instance, says that the right to a grand jury shan't be made binding upon the states.
You're free to argue against gay marriage all you like, but you can't do it by arguing that this interpretation of the 14th Amendment is strange, or unconstitutional, or revolutionary. The plaintiffs in the California trial are making the exact same case that dozens of civil-rights leaders have made before them, and they're winning for exactly the same reasons.
I concede your later points that today's society is probably friendlier to gays and lesbians than just about any society of the past, and that the reality of gay marriage is moving upon us quickly, but I disagree strenuously that the LGBT community should wait - the LGBT community has been waiting since recorded history began for official recognition; I think any delay past this point is tremendously insulting.