I don’t intend to make my blog all about marriage rights etc, but it’s an interesting topic and I have thoughts on it. Hence, there will be a couple of posts about it in the next few days. If you’re not reading for this kind of analysis, wait me out. I won’t take long 🙂
Those Australians who argue against the US Supreme Court’s holding in Obergefell v Hodges on the basis that unelected judges are moving into making legislature should be very careful when making those arguments.
In America this is applicable, as it is a fine line between interpretation and creating new legislation. In rulings to come it could tip either way. As a non-American it’s okay to make these comments too–when it’s about America.
In Australia, the courts’ interpretations are a majority of what give us an implied right to, for example, free speech. We do not have a bill of rights, or much constitutional support to fall back on, as Americans do, and new legislature can override (and has) any implied right that it wishes to.
Whether it’s technically appropriate in a system that is based on separation of the judicial, executive, and legislative powers, “divisive undemocratic judicial activism” is probably the only thing we have going for us in the Australian system.
This stance can probably be partially explained by the fact that the above argument is one being made by the American Christian Right. The Christian Right in Australia takes many of its cues from the Christian Right in America (due to its higher population and larger output of speakers and video, audio and written material). Sometimes those cues lose their context.