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Is Gay Marriage The Product Of Judicial Activism? (Forbes.com) July 2, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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One practical definition of judicial activism is when a court makes a decision with which you disagree. Not surprisingly, then, conservatives objected to judicial activism in last week’s same sex marriage Supreme Court decisions, while liberals decried judicial activism in a case announced just the day before (on voting rights). But taking the two same sex marriage decisions as a case study, to what extent could they fairly be called the product of judicial activism?

Asking the question begs another more fundamental question: What is judicial activism? There are lots of opinions on that, but none is definitive. Apparently the origin of the term came not in a legal opinion at all, but in a 1947 Fortune magazine article by historian Arthur Schlesinger in which he described the sitting U.S. Supreme Court as having 4 judicial activists, 3 judges who practiced “self-restraint,” and 2 in the middle. The distinction, Schlesinger argued, was based on their legal worldview, with the activists finding the law more malleable and subject to interpretation, whereas those engaged in self-restraint felt that legal terms had real meaning and it was not their place to provide a lot of interpretation.

Since then, there have existed many understandings of judicial activism. Perhaps the most basic is when a court usurps the role of one of the other branches of government and takes up the work of the legislature or executive. Indeed, Justice William Rehnquist in Roe v. Wade found the majority of the Court engaged in judicial activism or “judicial legislation.” Another variation is when a judge is results-oriented, wanting to reach a particular conclusion and searching far and wide to find some strained legal interpretation to support it. Black’s Law Dictionary says it is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors to guide their decisions.” I would submit that when a Court becomes an engine of change, rather than a brake on the illegal actions of another branch, it is engaging in judicial activism.

Under virtually all of these definitions, it is fair to conclude that there was judicial activism, or at least what New Jersey Governor Chris Christie called “judicial supremacy,” in both of the same sex marriage cases. On the surface, the Supreme Court did not appear to engage in judicial activism in the Hollingsworth case challenging the lower court ruling that California’s Proposition 8 was unconstitutional, since the Court used the narrow legal doctrine of standing to decide it. But the effect of that narrow decision was broad and activist indeed. The ruling effectively meant that no one could challenge the decision of a single federal judge that gay marriage could not be banned by a vote of the California people. Since the Governor and Attorney General of California refused to defend the law, and the Supreme Court said the proponents had no standing to appeal the case, the lower court decision stands unchallenged. A sweeping change in California law, nullifying the votes of 7 million people, was made by a single federal judge.

In the second same sex marriage decision declaring the federal Defense of Marriage Act (DOMA) unconstitutional, there were several steps of judicial activism. Most fundamentally, the Court decided that there is a right under federal law (not yet in state law, though as Justice Scalia warned in his dissent that can’t be far off) to equal protection for same sex marriages, overturning Congress’ and the President’s opposite determination when DOMA was enacted in 1996. Second, in order to satisfy his newly constructed test for the constitutionality of equal treatment for same sex marriages, Justice Kennedy, writing for the majority, had to find and did conclude that Congress and the President were motivated by a bad animus or purpose. So good for you, Justice Kennedy, your righteousness exceeds all those 342 members of the House, 85 members of the Senate and President Bill Clinton who supported and signed DOMA. Way to ignore the purpose stated by the bill’s Senate sponsor that if states wish to recognize gay marriage they may, but this bill would ensure that “the 49 other states don’t have to and the Federal Government does not have to.”

It’s too bad Justice Kennedy wasn’t listening more carefully when President Ronald Reagan said at the justice’s swearing-in ceremony that, unless judges accept their role to interpret laws, not make them, “the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.” Insulated as they are by lifetime appointments, the justices might also take a peek at this week’s Rasmussen poll, showing the people’s confidence in the Supreme Court at an all-time low, a drop of 32 points among conservatives and 21 points among moderates in recent years. And 41% find the Court increasingly hostile toward religion.

The legalization of same sex marriage started with the vote of a single judge in Massachusetts ten years ago, and pressed forward with a single unappealable decision by a California federal judge. As in Roe v. Wade and the fury it caused about abortion, the courts would do better to leave social change to the people and their elected officials.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/07/02/is-gay-marriage-the-product-of-judicial-activism/

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