Party A, "This Rembrandt is the best he ever painted.", Party B, "No it's not, this Rembrandt is the best he ever painted."
In these sorts of actions you aren't trying to prove a negative both parties are proving a positive, which is to say both parties are working to create a consensus understanding of the interpretation of the law. In one view what these folks do is legal, in one view it is not.
What generally happens though, and looking at the history of the same sex marriage effort is really a great analog here, is that one view or another comes up short in terms of written law, new law is written with what the consensus is thinking should be rather than perhaps what is.
Using same sex marriage as an analog, we started from "Homosexual activity is illegal" to a place where the consensus view was that you couldn't really legislate something which was innate, to "but marrying is illegal" to "well we recognize that your partnership is in many ways like a marriage" to what I expect tomorrow will be "You know, the state doesn't have any business defining the sex of the two people in a marriage." [1]
In each stage of this "conversation" (and I realize that term is not perfect but I don't have a better term for millions of people going through a process to reach consensus) we explored particular aspects of the problem. Was it the 'sex' that was wrong? Was it the 'people' who were homosexuals that was wrong? Is the definition of 'family' inextricably tied to offspring of mated individuals? Or is is broader than that? Are citizens harmed by this? Helped? How about their children? Other children? People around them? In every case one party says "It's wrong because 'reason'." and the the other party debates that reason or comes up with a different line of reasoning why its right. Jurists listen, they consider what has come before and will come after, and rule. Then we as a people consider whether or not that consensus was what we intended or want and then we create new law and the process continues.
It's slow, its ponderous, but it does converge and it allows things to move with the consensus as the consensus moves. FWIW this is the single most powerful 'feature' of our form of Government.
[1] I'll know tomorrow if I'm wrong I suspect but reading about the coverage at the Supreme Court I'm betting its going to come down on the side of same sex marriages.
You're confusing the process of drafting or modifying laws with the process of defining exactly what those laws mean in practice. Criminal courts only get involved once there's reasonable suspicion that a party has committed a crime (so far as the current legal understanding of the law), not before. You can't just say "so and so violated law A", the courts need some evidence to back up that claim. At best you might get a detective to go out and ask some questions, look around, and try to figure out if there's anything there to follow up on.
Now civil court is another matter, but the state doesn't prosecute that, so it's not really relevant to this discussion.
The court (and particularly the supreme court) is involved in interpreting the law, but they don't get to ask people to prove they haven't broken the law unless they have some kind of evidence that they did in fact already break the law. Simply claiming they "think" someone is in violation of a law based on no evidence at all falls so far short of the legal requirements to bring a case it's laughable. If somehow the government did prosecute based on no evidence at all I'd imagine there's a whole horde of lawyers that would line up to get a chunk of the wrongful prosecution lawsuit that would come of that.
Comments
Party A, "This Rembrandt is the best he ever painted.", Party B, "No it's not, this Rembrandt is the best he ever painted."
In these sorts of actions you aren't trying to prove a negative both parties are proving a positive, which is to say both parties are working to create a consensus understanding of the interpretation of the law. In one view what these folks do is legal, in one view it is not.
What generally happens though, and looking at the history of the same sex marriage effort is really a great analog here, is that one view or another comes up short in terms of written law, new law is written with what the consensus is thinking should be rather than perhaps what is.
Using same sex marriage as an analog, we started from "Homosexual activity is illegal" to a place where the consensus view was that you couldn't really legislate something which was innate, to "but marrying is illegal" to "well we recognize that your partnership is in many ways like a marriage" to what I expect tomorrow will be "You know, the state doesn't have any business defining the sex of the two people in a marriage." [1]
In each stage of this "conversation" (and I realize that term is not perfect but I don't have a better term for millions of people going through a process to reach consensus) we explored particular aspects of the problem. Was it the 'sex' that was wrong? Was it the 'people' who were homosexuals that was wrong? Is the definition of 'family' inextricably tied to offspring of mated individuals? Or is is broader than that? Are citizens harmed by this? Helped? How about their children? Other children? People around them? In every case one party says "It's wrong because 'reason'." and the the other party debates that reason or comes up with a different line of reasoning why its right. Jurists listen, they consider what has come before and will come after, and rule. Then we as a people consider whether or not that consensus was what we intended or want and then we create new law and the process continues.
It's slow, its ponderous, but it does converge and it allows things to move with the consensus as the consensus moves. FWIW this is the single most powerful 'feature' of our form of Government.
[1] I'll know tomorrow if I'm wrong I suspect but reading about the coverage at the Supreme Court I'm betting its going to come down on the side of same sex marriages.
You're confusing the process of drafting or modifying laws with the process of defining exactly what those laws mean in practice. Criminal courts only get involved once there's reasonable suspicion that a party has committed a crime (so far as the current legal understanding of the law), not before. You can't just say "so and so violated law A", the courts need some evidence to back up that claim. At best you might get a detective to go out and ask some questions, look around, and try to figure out if there's anything there to follow up on.
Now civil court is another matter, but the state doesn't prosecute that, so it's not really relevant to this discussion.
The court (and particularly the supreme court) is involved in interpreting the law, but they don't get to ask people to prove they haven't broken the law unless they have some kind of evidence that they did in fact already break the law. Simply claiming they "think" someone is in violation of a law based on no evidence at all falls so far short of the legal requirements to bring a case it's laughable. If somehow the government did prosecute based on no evidence at all I'd imagine there's a whole horde of lawyers that would line up to get a chunk of the wrongful prosecution lawsuit that would come of that.