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   Jason writes:

     Dean,

     I definitely agree with your proposition that an issue like gay
     marriage should be decided legislatively or by the people of a
     state through some sort of referendum at election time, rather than
     having the issue decided for them by some activist court in
     contravention to a majority opinion, perhaps even a vast majority
     opinion in a given state. I also think that gay marriage in some
     form is inevitable and not too far off as our culture changes over
     time. But I wasn't clear how an executive order from a president or
     governor is different from a decision by an activist court in the
     sense of imposing a decision that a given populations doesn't agree
     with.

     Thanks and keep up the good work.

   Well some civil rights advances happened by executive order because
   they could. For example, Harry Truman integrated the military--they'd
   had separate black and white units until Harry Truman, as Commander in
   Chief, just said one day, "No more, all units are to be integrated
   racially. Right now. Make it so."

   Presidents and Governors can also do things like alter government
   hiring practices, and alter policies on how rigorously certain laws
   are to be enforced, etc. To pick a dramatic example, under Eisenhower,
   the Supreme Court ordered the end of segregated schools in Alabama
   because they violated the civil rights of the students. The Governor
   said the Supreme Court had no right to do that, that it was trampling
   on states' rights. This forced President Eisenhower to make a choice,
   and he did: he ordered the National Guard to go down there and enforce
   the Supreme Court's decision. If he hadn't done that, the Governor
   likely would have won the fight.

   So even in the case of Brown v. Board of Education, it wasn't entirely
   a judicial matter, it also involved executive order. The President
   could have sided with the Governor and said he thought the Supremes
   were out of line. He decided to side against the Governor, and with
   the Supreme Court. He didn't have to.

   Oh yes, and I should mention, it was John F. Kennedy who by executive
   order enacted the first "Affirmative Action" program, at least in
   word. His affirmative action order was that the Federal government was
   mandated to give preferential treatment in hiring to QUALIFIED
   minorities. Mind you, this is different from LOWERING STANDARDS, which
   is what Affirmative Action became about two decades later. But the
   President had the power to order those in the executive branch to work
   harder to find qualified minorities to hire for government jobs,
   because, it's basically up to the executive what the hiring standards
   are.

   But those are just dramatic examples. Less dramatic examples happen
   every day; the law may say something, but law enforcement agencies and
   prosecutors--who work for the executive branch--decide all the time
   how vigorously they're going to enforce certain laws, and even what
   those laws mean exactly. They have to, it's part of their job. Ask a
   cop some time to explain to you what "assault" means in your state.
   You may be surprised, especially when you realize that a lot of it is
   what the cops percieve, and what they know prosecutors (and their
   superiors) expect them to say. Very few of them read the laws they
   enforce all that closely. They mostly have procedure manuals and
   policy statements they work from, plus just the everyday, "this is how
   it's done" stuff, which is as much set by the leadership (i.e. the
   executive branch) as it is by any close reading of the law's written
   minutia.

   It is an enormous mistake to think that the executive branch is merely
   a bunch of automatons who carefully and dispassionately follow the
   literal words of the law and nothing more. That is, in fact,
   impossible. Indeed, what's amazing is that with all the differing
   interpretations of legal language and precedent, it somehow all
   manages to coalesce together into something basically coherent and
   understandable anyway. I'll bet most lawyers would agree...