Judicial Activism and Gay Marriage in California

You can find the story anywhere, like Wizbang, for example. In a nutshell, a California court held that a state cannot constitutionally forbid gay marriage. Conservatives complain about judicial activism, liberals salute - well, I guess they're saluting judicial activism, although not in so many words. For example:

"As predicted, they’re already crying Judicial Activism™...even though they haven’t defended those charges." Gay Orbit

"And to all the right-wing blowhards who will be all over the teevee, the newspapers, and the blogosphere crying about 'judicial activism,' I say: So was Brown v Board of Education..." Captain Normal

At the first link, blogger Michael essentially argues that it's not judicial activism because it's "interpreting the Constitution correctly." I don't find that to be a convincing claim by a long shot, because experience with Constitutional law has jaded me to the point that I'm convinced there's no such thing as the correct interpretation, only the interpretation that happens to carry the day. And Captain Normal expressly embraces judicial activism, analogizing gay rights to the desegregation movement, and calls it justified on that basis. And Kevin from Wizbang succintly states, "Judicial activism - it's what's for dinner."

None of the above-linked writers actually explains what "judicial activism" is - it's kind of taken for granted. And if the conservative claim that this is judicial activism is to be defended, as Michael apparently wants, first we're going to need a definition.

Let's start by discarding one myth. Judicial activism is not the process of a judge making up law. That is called Common Law, and it's actually at the foundation of our Anglo-American judicial system. In fact, it is probably impossible to devise a system where judges don't make up - by which I mean, at a minimum, filling in gaps - the law.

A better definition of "judicial activism," - and by better, I mean it's a definition that accurately encapsulates the meaning generally ascribed to it in political discussions - would be an attempt by the judiciary to change social trends and patterns in order to shape society. Thus, if Captain Normal's claims about Brown v. Board were legitimate (they aren't), that case could be described as the Supreme Court seeing a pattern of racial discrimination and saying, "That's not good enough. We know what reality is, but we want to change things to fit the way we think things should be." There's a big difference between that attitude and simply asking judges to fill in gaps, as they must.

Brown v. Board was the famous school desegregation case, where the Supreme Court said public schools can't be separate but equal, because separate is never equal. What Captain Normal doesn't mention (and he candidly admits he has no legal training, so I don't blame him) is that leading up to the Brown decision, the political branches had been working to acheive equality. It was the executive and legislative bodies that looked at society and said, "that's not good enough. We need to change this." It was only after three constitutional amendments, countless federal bills, nearly a hundred years of history, massive political pressure brought to bear by huge portions of the country, and even the U.S. Department of Justice arguing against the Topeka Board of Education that the Supreme Court finally ruled in favor of desegregation. Captain Normal calls that judicial activism? Activism of the laziest sort, if at all. More importantly, the will of the people had overwhelmingly spoken by changing the Constitution, and only when older attempts at applying that change (i.e. in Plessy v. Ferguson) failed that the Court moved on to more stringent measures to, again, affect the will of the people.

In other words, Brown v. Board is not a good example of judicial activism, if that's your chosen means of justifying it.

Consider gay marriage, by contrast. Bill Clinton signed a federal Defense of Marriage Act. No state that has put an anti-gay marriage amendment up for a vote has seen it voted down - indeed, many liberals blame these amendments for unusually high voter turn-out in states like Florida, Missouri, and Louisiana (to name a few). A proposed amendment to the United States Constitution, although roundly criticized in the Senate, garnered far more votes than expected (it nevertheless failed in the Senate, FYI). Many people blame possible gay rights arguments on the failure of the Equal Rights amendment, which expressly sought to even the playing field for men and women (interesting side-note: then-professor Ruth Bader Ginsburg was one of the authors of that ill-starred Amendment, and in promoting it, she expressly claimed that the drafting history was clear that it could not be used for gay rights. If Ginsburg the arch-liberal wasn't willing to touch gay rights with a ten foot pole, what does that say?). In liberal Massachusetts, the majority of people oppose the Supreme Judicial Court's decision to mandate gay marriage. Gay marriage has found no substantial support from any President, Congress, or state legislative or executive body.

In other words, gay marriage does not compare favorably with the civil rights movement, historically speaking.

Granted, none of that makes gay marriage wrong. A correct principle, though despised by everyone in the world but one, would neveretheless be a correct principle. But it does shed some interesting light on the aptness of the phrase "judicial activism." Consider that in California, the people have spoken. Although it is a very, very blue state, they actually changed their Constitution to forbid gay marriage. The executive, too, is on the side of the social conservatives on this point. That means this judge looked at the political reality in California and decided, "that's not good enough. It has to change." I hope that, based on all of the preceding, I have effectively responded to Michael's charge that social conservatives haven't defended the charge of "judicial activism."

The next question, and one I won't answer here, is whether or not judicial activism is appropriate in this case. Because the fact is, our government is not designed to run on a strict "majority rules" system. We have two branches of government that (in theory, at least) respond to the will of the majority, because they are directly elected and re-elected by that majority. This prevents James Madison's fears of tyranny by the minority. But we also have a branch that responds to the needs of the minority, and that responsiveness is protected by total insulation (in theory, at least; I'm looking at you, O'Connor) from elections. This prevents James Madison's fears of tyranny by the majority. Both are dangerous. Both were foreseen by Founding Fathers who gave us a certain type of government. The question is, which branch must yield in this case? Should the strident cries of maybe 20% of the population work to change one of society's most important foundations? Or should 80% of the people get what they want through brute electoral force alone? Again, I won't answer that question yet (I've already gone on too long), but I put the question out to consider, and I hope Michael and Captain Normal will take the opportunity consider the question, as well.

More: From No Oil for Pacifists:

"Because California's people, and their representatives, explicitly prohibited gay marriage a few years ago, the court had to reach back and claim the 126 year old Constitution foresaw and forbade statutory heterosexual qualifications for marriage today."

From Right Pundit:

"Judge Kramer, in his infinite wisdom, has declared every civilization since the beginning of time 'irrational'."

From College Pundit:

"The obvious problem for these activists is that they can't make a cogent argument to a state legislature, so they try and turn a few judges to do the heavy lifting for them.... Instead, they're creating their own PR nightmare by appearing to be weasels - people who can't persuade others to their side, so they get judges to do the work for them."

From Pennywit:

"This California decision, however, is a thing of beauty. In his opinion, Judge Kramer strips away the sentimentality of marriage and examines the issue strictly through a prism of law.... While those of us who support same-sex marriage can wax poetic about the right to love whom one chooses, to raise a family, et cetera, a judge cannot afford to suffer the same emotional malady. He needs to approach the issue sensibly, with an eye toward the federal and state constitutions and a fair application of the relevant common law." [Pennywit contrasts this decision to those in New York and Massachusetts, which were too emotional].

From The Sundries Shack:

"First, is it wise for a judge to call everyone who argued the losing side of this case irrational? [Note: in constitutional law, the "rational basis" test doesn't necessarily imply a condemnation of the person making the argument. It's technical language, without all of the emotional baggage we'd find if I were to say "those people at the Sundries Shack are irrational."] ... Second, the judge has just opened a great big can of worms. By ruling that the ability to 'marry the person of one's choice' is a 'basic human right', the judge has just legalized bigamy, polygamy and incest." [Note: The point is well-taken. Proponents of gay marriage persistently deny that gay marriage and polygamy are analogous, but I'd be very interested to see one of them read this opinion and explain to me how it leaves polygamy or incest out of its broad language].

From Brain Fertilizer:

" ...so maybe we do need a Federal Marriage Amendment after all? Their assurances of 'letting the States decide' might have been deliberate misrepresentations? Perish the thought!" [Note: Inherent in the idea of letting the states decide is the possibility that some of the states will decide in favor of gay marriage, so I don't know that the criticism is well-taken. It might be answered that judicial activism isn't the same as "letting the states decide," but you have to make that argument, not just presume that it's been made and accepted].

From Scared Monkeys:

"However, there are also bills pending in the CA Legislature that would put a constitutional amendment banning same-sex marriage on the November ballot. Frankly, this is where it should be decided, the voters. It is far time that the electorate be allowed to vote on this issue instead of unelected men and women in black." [Note: the author doesn't explain on what basis certain issues should be left to voters, and other issues should be left with judges. It is natural to claim that an issue should be decided by a certain group, when we know that group agrees with you].

From Outside the Beltway:

"Michael Demmons links a poorly scanned PDF of the opinion at FindLaw. He accuses me, along with Rusty Shackleford, of being 'social conservatives.' I find this amusing, since I've repeatedly defended the idea of gay marriage on libertarian grounds. My belief that public policy should be made through legitimate processes simply trumps having my preferred outcome prevail."

From Obsidian Wings:

"Personally, I want to marry the Equal Protection Clause, but I don't think that's legal anywhere. (And just think of the parade of social ills that would be visited on us if we were allowed to marry abstract entities...)" [Even better, from the comments: "Shall we refer to you as Mrs. Clause?"].

From Boi from Troy:

"Of course, this will surely be appealed, but it's beginning to be look like Californians may join those in Massachussets in enjoying equal marriage rights sooner rather than later." [Note: there is a picture of (what I can only assume is) a gay couple with rings on their left hands, for some reason. I also note that Boi from Troy has taken to heart the advice to stop calling it "gay marriage" and start calling it "equal marriage"].

From Prestopundit:

"SAN FRANCISCO JUDGE to the people of California: I make the laws in this state, your job is to shut up and follow the laws as I pull them randomly out of my a**... The LA Times come out in support marriage law by judicial fiat -- and in a bizarre twist of logic it claims that respect for democracy demands that we respect the reasoning of a judge who clearly has contempt for both democracy and our constitutional system." [Note: "Respect for democracy"? Uh, yeah. Sure].

From Esoterically.net:

"Think about that for a moment. What exactly is this 'democratic process' of which he speaks?" [Note: are you really so unfamiliar with the concept?].

From TalkLeft:

"Prepare to hear more complaints about 'activist' judges -- 'activist' being defined as any judge who interprets the law in a way that upsets the religious right --"

From Daily Kos:

"The opinion is even a good read (Kramer is a Pete Wilson appointee with a finely-crafted sense of irony), that demolished all arguments that proponents of the ban might try to carry forward on appeal. A fine smackdown, indeed." [Note: regardless of how you feel about this issue, I think we can all agree that this statement is nothing more than substanceless cheerleading. Way to raise the bar].

And speaking of "substanceless," from Oliver Willis:

"Gay people should be allowed to marry - and all the joy, happiness, madness, and frustration that ensues." [Note, for both Willis and the Kossacks: when you attempt persuasive writing, you're going to have to actually give reasons for your conclusion. Bare assertion is all well and good for getting cheers from people who already agree with you, but you're certainly not going to convince anyone].

Myopic Zeal has a round-up. The Moderate Voice wonders how the Governator will react. Vote for Judges uses the issue to make the case that judges should face election, thus removing them from electoral insulation. A very interesting read. Rusty has a link-fest, and denies (contra Gay Orbit, cited above) that he is a social conservative. Skippy the Bush Kangaroo describes the opinion as declaring "bigotry unconstitutional," but doesn't opine on bigotry against polygamists or incestuous marriage.