From this morning’s A New York Times:
Perhaps most telling of all, the state’s highest court ruled last week that gay couples cannot legally marry, and explained its decision by suggesting that heterosexual parents might be better suited to child rearing.
Banning gay marriage is one thing in Georgia, and judges there did just that the very same day. But in New York? This supposed bastion of liberalism, the birthplace of the American Communist Party, the N.A.A.C.P. and the gay rights movement?
Except that the judges didn’t ban same-sex marriage, either in New York or in Georgia. They simply found no grounds to invalidate existing legal rules specifying that only opposite-sex marriages will be legally recognized. The bans were enacted by the legislature (in New York) or by the voters (in Georgia) — the judges upheld the bans as constitutional, rather than banning gay marriage themselves.
The story later says that the New York court decision leaves the matter to the legislature, so the story isn’t entirely mistaken on this score; the careful reader will grasp that characterizing the decision as involving “judges” “[b]anning gay marriage” is imprecise. Still, it’s too bad that the concept of judges actually enacting a policy decision has gotten so confounded in people’s (including journalists’) minds with the concept of judges simply letting stand others’ policy decisions.