No, the purpose of the Judicial branch is to enforce the law. They should not be interpreting things into the law that are not expressly stated in the law.
For instance, let’s say a law was passed that only red apples could be sprayed with pesticides in the country of Ik.
A judge should not be then premitted to say that Squirrels located in a zoo should be sprayed with perfume because the law is not fair and squirrels were not mentioned so the law must be unbiased.
This is an example of what, on a routine basis, happens in our courts today. Albeit, I will agree that maybe not to that insane extent. I exaggerated to make the point.
I do, however, agree that the written, voted on and legally legislated laws of a country should be maleable enough for that same judge to have said that if the squirrel happened to be on the tree at the moment the insectiside was sprayed on the apples, that the action was still legal. The squirrel, after all, choose, no matter how willingly or not, to be on the tree at that time.
An “energetic” executive is there to veto laws that are passed legislatively. (the president, for instance, could not over turn said judge’s proclamation from the bench because he does not have over sight of the judicial branch.)
The justices (only on the Supreme Court) can declare a law unconstitutional. All other justices are there to enforce the law by proclaiming someone’s guilt and dictating an appropriate punishment. Not to “interpret” the law. Laws are “interpreted” by the legislative branch. Heck, even in the name of the branch it says “Legislate”. Only the legislative branch may write, interpret and pass laws. Only the executive can investigate and veto laws. Only the judicial branch enforce laws.
In all events, the will of the people (The Constitution of the People, primarily) should be enforced by the bench, investigated by the executive and legilstated by the legislature.
In regards to same-sex marriage, this is a highly polarizing issue. Historically, I would have said it’s akin to allowing NAMBLA (National American Man Boy Love Alliance or similar) to allow to marry since both are sexually deviant behaviors in my mind. But again, that is also highly polarizing.
I, honestly, feel it is more appropriate, and much easier to shy away from politics, if we use a nonsensical example, such as the one above.
A case of a non-nonsensical examble would be a judge determining it is illegal to murder someone because of the color of their skin. The civil rights movement is not valid to use as a nonsensicle situation for two reasons:
It actually happened, thus is plausible, not nonsensicle.
Murder is already and always has been illegal in this country.
The issue is not so much judges legislating from the bench so much as judges who do so are generally the ones that are protected by state constitutions (and extention of the federal constitution) from being removed from power and can only be kept from gaining more power.
If the people were allowed to remove any justice who did not enforce the law in a manner that the people wanted, then this would be a non-issue. Since they are protected from the will of the people, ostensibly so they can rule “fairly” and “without bias”, they they need to endeavor, doubly so, to make sure that their rulings are fair AND (inclusive and) in line with the will of the people.
If the people of a district wanted to rule that women must shave their armpits before going to the beach, and since it is common practice in this country to shave their armpits anyway, then a judge would be violating the trust of his position if he declared that women must not ever shave any parts of their body. (This is akin to gamer’s analogy of same-sex marriage.)
For the record, I am all in favor of getting government out of ALL marriages. Let couples go to court and get a civil union agreement there and let established, endorsed, religious institutions - such as Islam, Judism, Christianity, Catholocism and (if applicable) Wiccanism handle the religious ceremony of marriage.
In this way you will never have a homosexual couple sue a church because they would not perform a marriage ceremony. Likewise, homosexual couples can have equal standing with married couples in the eyes of the government because both hetero and homo sexual couples will have to have a civil union in order to have said recognition by the government.
Why do we need justices to upturn the apple cart for this? It’s rather simple to solve and much more equitable. After all, the side that wants homosexual marriage is also the side that routinely screams “seperation of church and state” (which for the record is taken WAY out of context). So why not take government completely out of the church’s business in this regard?