The only case from the ones that you presented that was in any way legislating from the bench was Roe.  The others are merely doing what the judicial branch was meant to do, interpret laws and act as a check on the legislative branch to prevent unconstitutional laws.

All the cases cited were examples of the courts legislating new laws from the Bench. I have no idea where you see only one.

Let's take it case by case.

This is declaring a practice at a government entity to be unconstitutional because it is favoring one religion over another.  That isn't legislating from the bench.

While I am pro-chioce I will give you that this is the closest of your examples to legislating from the bench.

This is very similar to the first case.  While I don't necessarily have a problem with a moment of silence it is still establishing the favoring of religions that allow silent prayer.  Allowing for prayer in school at all is involving religion in a government entity which is unconstitutional.  Whether the constitution spells out separation of church and state or not it is clearly what was implied as Thomas Jefferson stated later in his life.

See my previous statements about a government entity and prayer.  It is unconstitutional, not legislating from the bench.

This is ruling on past court cases not legislating from the bench.

The only reason any law was made outlawing sodomy was because of the Bible which is UNCONSTITUTIONAL.  Again this isn't legislating from the bench it is performing their check on the legislative branch.  You may not like the idea of homosexuality, you may even think that it is a sin but that doesn't mean it should be deemed illegal.  Just like you may not like people who take the lord's name in vane it would be unconstitutional to make it illegal to do so.

So like I said there is only one case here that is legislating from the bench.  I'm not saying that judges don't legislate from the bench, they certainly have and it shouldn't be allowed but of the examples you provided only one really fit the bill.

yes it is, because it does not require what religion you MUST pray about, you can be Jewish and pray in the Jewish manner. so this argument is bogus.

Again what happened to states rights? when a state passes a simple law that allows a CHOICE in whether to pray or not to pray there is no infringement on anyone's right nor is it promoting any one religion over the other.

I( see this one way, you see it another way, Judges legislate from the bench all the time and the examples I set forth are good examples, maybe when a few more people weigh in on the subject we will see if I am wrong or right, If I am wrong I will admit it freely, will you?

If I am remembering correctly there were school lead prayers prior to that 1962 case which meant that the school was favoring one religion over another.  What if a student happened to be Hindu and the prayer was judeao-christian in nature.  That is favoring one religion over another which is unconstitutional.

Like I said "Separation of Church and State" may not be spelled out in the constitution but it is implied, it is the courts responsibility to interpret the constitution and make rulings based on that.  They reasoned that the constitution implied a separation of church and state and ruled accordingly.  That is NOT legislating from the bench.

States definitely have the right to make whatever laws they want with two major conditions, the law cannot contradict any federal law (or the US constitution) and the law cannot violate the state's constitution.  The idea of prayer in schools violates the 1st amendment of the US constitution therefore it is the courts responsibility to rule that the law is unconstituional.  A moment of silence is not sufficient for some religions to do their prayers.  Some religions require verbal chanting and/or physical movements, a moment of silence puts a preference on certain religions over others again this is unconstitutional and the courts have every right to strike down laws like that in their capacity as a check on the legislative branch.

As I stated I agree that some judges do legislate from the bench and they should not, I was simply pointing out that I don't think the examples you provided really proved your point, that's all.  As for admiting when I'm wrong, I am always willing to admit when I'm wrong but as of right now I still maintain that the cases you provided (save one) really don't show legislating from the bench.

Actually, while the intent was I believe to circumvent the ruling, clearly this is a case of Judges making law as a moment of silence is not religious or mandatory prayer.  I give MM this round.

This one again goes to MM.  As the ruling prevented students from practicing their religion, not stopping the schools from enforcing a religion.  That was the case, and it was based on the erroneouos ruling of "separation", but clearly it is not based on any precedent or document.

And here we disagree with the interpretation (not the actual ruling).  Clearly there is more than one source (not just the bible - look at ancient law for precedence for one) of the ruling, and none are found in the constitution.  This one was based on the RoeVWade error and seems selective in its interpreation (as was Roe V Wade).  There are numerous instances where the government is infringing on our right to privacy - yet they are not thrown out unilaterally.

And in so ruling, the courts are legislating.  No longer are the legislature or executive making law, but the judges as they seem to decide which laws can be enforced and which cannot.  On a purely arbitrary basis.

I will agree that not all of MM's list is judicial tyranny, but he is just scratching the surface.  Clearly there is no basis in law, precedence or jurisprudence to have the California SC to even review the latest amendment to their constitution, yet they are.  And should they over turn it, then California will no longer be a democracy but a Judicial dictatorship.

I think we all agree that there are a lot of laws that none of us like, yet we obey them because our representatives passed them.  Now we dont have to.  We just get appointed judge jury and executioner, and we are good to trash the laws we do not agree with.

I did not add all the ruling I could have added showing Judges legislating from the bench as it would have made this article prohibitively long to read, there are so many cases of Federal and State courts making new laws from the bench that someone would have to write an article 6 times in length the one I wrote. I thank you DocG for your analysis.

We will just have to agree to disagree here because I still maintain that a moment of silence, intended for prayer, discriminates against religions that do not do silent prayer.

Again we will just have to agree to disagree because even though this was student led prayer it was till at a school sanctioned event and could be seen as discriminating against other religions which is not allowed by the constitution.  Like I said while separation of church and state may not be spelled out in the constitution it is implied.

Whether you want to say the ruling was based on religion or on privacy I still don't see this as legislating from the bench but rather the judicial branch checking the legislative branch which is their duty.

I agree with you on this one.  While I personally disagree with that amendment that was passed, it is now passed and therefore constitutional in the state of California and for any judge to overturn that would be legillating from the bench unless they somehow think that the amendment violates the US constitution which would be a very hard sell if you ask me.

Here's my beef (this is a tangent, as I respect our agreeto disagree).  No one can know intent unless stated.  And it is not stated.  So I will "read" into it something that you may not.  Which is normal, we are human after all.  But when they start reading "intent" into anything, what they are doing is saying "IMHO".  IN other words, they are legislating from the bench.

It is the key reason I do not like or condone hate crimes.  With few exceptions, no one can know intent.  INfer it?  We do all the time, but then your inference is not the same as mine.

The rulings, constitution, and even intent of the documents used to create the separation of church and state - never - have stated "freedom FROM religion".  The very idea that I pray at my desk can now be called into question with no basis in law or precedence.  A student led prayer is not the organization promoting or condoning it, but it is freedom of speech.  After all, I doubt most cities that allow the Klan to march condone or support them, but they have to allow them.  This one goes against the very Amendment they are claiming, and again has no rational basis in either history or the constitution.

That is why I did not disagree with you on the ruling.  But clearly when the government prevents you from practicing some things, and not others, and the courts are only ruling on the ones they see as "not fair" (from their warped perspective of fairness) they are legislating.  If they were ruling, then they would rule on all privacy laws the same.  Not just the ones they did not like.

A judges job is to interpret the law.  That's what they do, so them reading "intent" is perfectly within the bounds of their duties.

This is slightly different.  A judge is perfectly within their duty to interpret intent when it comes to laws but when it comes to an alledged criminal they have to rule based on the facts, some facts may lead to a suggested intent but a judge can't outright assume intent on an alledged criminal.  I am not completely against hate crimes because I do think that there are instances where it is clear that the accused clearly was coming from a place of hate but I do agree that the term "hate crime" is used too often and applied when it isn't necessary.  Just because a victim happens to be gay or a minority doesn't automatically make the crime a hate crime.  Now if the victim was singled out because they are gay or a member of a minority I do think that it should be called a hate crime.

I disagree.  The freedom of religion is the same as the freedom from religion.  Just as you have a right to pray at your desk (and that should definitely be protected) I have a right to not have prayer forced down my throat if I happen to attend a sporting event or a school play.  My freedom of religion is that I happen to not practice any religion and I shouldn't be forced to do so just because of where I am.

It is if the students feel compelled to join in the student led prayer because they fear how the other students will treat them if the don't.  A school is a very different environment than any other public property because it is government run.  The Klan would not be barred from protesting or marching on city streets but they would be barred from protesting or marching on school property because it would be seen as the school condoning the message.  Similarly you won't see the Klan marching or protesting inside of any government building because that would be seen as the government condoning the message.  In this example look at at all the school grounds as the interior of a government building.

Can you provide an example of a court case where the court ruled in favor of the law encroching on someones privacy?  I can't think of any off the top of my head.  If it is a simple matter of the judge liking this one and not that one then that may be considered legislating but it would have to be the same court doing it for that to apply since each judge may interpret the same law in slightly different ways.

basically abortion, homosexuality, and school prayer... homosexuality and school are indeed unconstitutional because of seperation of church and state. Abortion is indeed legislating from the bench. (has nothing to do with privacy), but it was overall beneficial to make such legislation.

Besides, the judicial branch is an equal member of the checks and balances system. You can't just expect it to have no powers whatsoever.

Only in interpreting the law, not actions.  BIG difference.

No, it is exactly the same.  Looking for intent in a law is one thing.  Looking for intent in an individual is divination.

No.  The first allows free practice thereof.  The latter prohibits the practice thereof.  After all, I pass many religious celebrations and rites and sites on my way to and from work every day.  The latter would allow me to have them legally removed from my sight.

Again, I disagree.  QUite simply, the inference and practice are not conducive to reality.  By your reasoning, we all must root for the home team at a sporting event since the majority of the participants are and there would be "fear" of not fitting in.

There is always that fear. and the weak willed and minded are always going to suffer from it (Remember Guyana).  But we cannot run a country based on the fear of the few.

Suicide.

But when the facts of the case show a clear intent then it is not a deviation.  If a KKK member or neo-nazi walks into a gay bar and attacks a patron or goes up and attacks someone waiting to get into a known gay club then the intent there is that it was a hate crime because the individual or individuals were singled out for being a member of a minority out of a place of hate.  Now if there was someone beaten to within an inch of their lives who was at a bank or waiting in line at a restaurant that would not be a hate crime even if the individual was a member of a minority.  Intent can certainly be inferred by the facts of the case.

I disagree.  The freedom of religion allows for the practicing of no religion which is equivilent to a freedom from religion.  It does not extend to passing religious sites and being able to stop them because there is nothing forcing you to remain there and partake in the celebration or the rite.  However if you are at school and there is a led prayer you can't get away from that, you are having religion forced on you.  Here's another example, one of the local radio stations plays nothing but christmas music for the 5 weeks between Thanksgiving and New Years.  I get extremely annoyed by it because after a day or so you have heard every christmas song ever written and played on the radio.  Now I can't stop the radio station from playing the music because I can very easily change the channel.  However if I was in a place that I had no choice in being at like jury duty or school I could attempt to stop them from playing the non-stop christmas music.

I think we will have to continue to agree to disagree here.  I think there is a big difference between a led prayer and rooting for the home team and the big difference is how people react.  Competition between teams is seen as ok, most people won't care what team you root for, they might verbally harass you a bit but it is generally all in good fun.  However when people learn that you differ in religious views there tends to be a much bigger reaction. 

This is a little different but if someone were to find out that their neighbor were a wiccan this can cause the neighborhood rumor mill to crank into high gear and suddenly the neighbor is an animal sacrificing witch who will put spells on anyone who crosses her.  And all of that could have been started when someone saw you not prayer at the school sporting event.

But the courts are starting to come around on this one.  More and more are actually allowing for assisted suicide in the case of terminally ill patients.  I will agree that this is definitely one situation where the courts have overwhelmingly been encroching on ones right to privacy though.

Divination, not deviation (ok, you may mean the latter, but I meant the former).

I would argue against that.  Since clearly they were in a place where all were gay, their chosing one is just a crime.  And probably not a hate crime since this was simply a premeditated one.

Hate is involved with many crimes, but then one can also argue that without hate there would be no crime (in an instance not as a general statement), so convicting someone of a crime and then of hate is double jeopardy.  And in some cases just flat out wrong.

Freedom of religion indeed allows for the freedom of no religion.  But that does not guarantee you the freedom from religion.  If I pass you on the street and say "God Bless you" you are touched by religion.  You are not free from it.  YOu are free not to practice it, or participate in it, but no one can be free from it.  Unless they are monastic, or live in a totalitarian state where it is forbidden.

Led by whom?  If a student stands up and starts citing the OUr father, that is not forcing anyone to participate.  If I stand up and start a wave for the home team, that is not forcing you to participate.  Again, if the leader is just a spectator, then it can hardly be called led prayer.

And again legislating from the bench.  Allowing it because you think it is fine, is one thing. Ruling it unconstitutional is another.  SO far, no one has.  And that was just one.  Narcotics, dope, seatbelts (which are gaining, not losing), helmets are all examples of a deprivation of privacy that the courts are blindly accepting - because it fits their agenda, not because they are thinking in the vein of ROe V Wade.

Sorry that's my fault, I misread your comment.  I still stand by my assessment that it is within a judges duties when the facts suggest an intent.

I would still argue that a crime driven out of a hate for a given group of people is deserving of a harsher punishment.  But I see what you're saying, I just don't think we will ever agree on it.

I mean free from having religion forced on you in a situation that you can't get away from, like school led prayer.  You have little choice in where you get your education (some parents can't afford private school) so to have religion forced on you there is violating your right to practice whatever religion you choose (or no religion at all).

Walking down the street is a different situation.  It's not like you would be forcibly stopping me in the street to preach the word of jesus to me, I have the ability to walk away from you if I so choose.

But it was my understanding in the student led prayer case that it was read aloud over the PA and everyone in the crowd was expected to join in.  Just because it was a student who was leading the prayer doesn't mean that it was just a spectator in the crowd.  If you want to sit in a crowd and pray with your family that's one thing, but to have it be led over the PA is a different situation.  And like I said I think prayer is very different from led cheers or the wave based on how people react around you as a result.

I can see your point here.