It’s just those damned activist judges again, making trouble for the rest of us….

“The lawless judicial attack on traditional marriage and on representative government continues.”

~ Ed Whelan @ NRO writing on Friday’s landmark decision by the Iowa Supreme Court to lift that State’s ban on gay marriages.

The first thing that strikes me as ironic about this statement is that in all likelihood, had the court implemented the ban rather than removed it, the Ed Whelan’s of the world would no doubt be happy enough, and it is pretty much unthinkable that any opponent of gay marriage would decry a decision by a judge (or judges) to ban such unions as “lawless judical attacks” on same sex marriage.  The whole notion of “activist judges” is essentially a ruse.  The fact is, conservatives only care to point out such “activism” when it rulings go against their own political beliefs and principles.  When rulings go the other way it isn’t activism, it’s justice, or its rooted in the Constitution, etc.

To quote Whelan one last time, “what gobbledygook.”

Quite honestly, I have difficulty following this logic.  First of all, the court was taking into account the constitutionality of the ban on gay marriage in the first place, and quite rightly found that it was not, in fact, constitutional.  Revoking the ban is not activism; it is a reaction to activism.

The fact is, we have numerous means within our legal system to pursue justice.  There is the legislative process which is probably the best way to get something done though it often requires compromise and the precariousness of electoral politics, not to mention that in any legislative battle there is always the risk of a veto (damn activist governors!).   Then, too, there is the voter referendum, which is more often than not a great way to ban something – and far more difficult to use as a means to legalize things.  Mobs are motivated too often by their passions, and the dollars behind the various efforts, and prohibitive efforts, often fueled by fear, are much more mob-friendly.  This is why Prop 8 succeeded in California.

Then there is the judicial path, where arguments are made in court and judges make rulings on them.  Ironically, this is the only of the three paths that is pejoratively described as “activist” even though both legislative and especially voter based initiatives are essentially defined by their activism.  Legislators must have popular support before they can push anything, and governors typically need voter support if they plan to veto anything, and obviously voter initiatives require popular support if they are ever to accomplish anything and all of this requires some degree of activism, lobbying, and so forth.  Only the judicial process is even remotely free of this sort of activism.  So-called “activist judges” must temper any of their own political and moral beliefs with the knowledge that any ruling they make that is in fact unconstitutional can be overturned by a higher court – on up to the United States Supreme Court where the proverbial buck stops.

The ruling in Iowa is an undeniably good thing.  It falls into the category of smart change, and fits nicely into the American tradition of sensible progress toward equal rights under the law.  The added bonus, of course, is that all those gay Iowans who can now be married won’t have any bearing on the marriages of anyone else in the country.  Indeed, their marriage will probably not effect your marriage in any tangible or meaningful way…ever.   Your marriage will remain just as sacred, just as valuable, just as real and good, as it was before you read the New York Times this morning.  In fact, the move toward marriage equality will, if anything, help to preserve marriage as an institution; the alternative is a national push to end marriage altogether.

So to Ed Whelan et al, you can say “activist judges” over and over again until your face turns blue.  It sure is catchy, after all.  But the fact is, you’e on the wrong side of history this time.  Conservatives do have a responsibility to check and balance change and progress, which is often chaotic or unnecessary, but the marriage equality debate is not one of those times.  I’m married to a beautiful woman, and I can tell you one thing for sure – my marriage is every bit as holy and beautiful as it was yesterday.  It hasn’t suffered even slightly since gays were allowed to marry in Massachusetts.  Nor did it lose meaning when Canadians extended marriage equality to their homosexual population.  I’m pretty sure the “definition of marriage” transcends borders, so the fact that other nations have “re-defined” it and marriage is still okay says something.

Look, the only thing that threatens my marriage is me and my own failings.  So I have to look to myself and to my own marriage and then do the hard work that such a joining of souls requires.  The real threat to marriage is selfishness, in straights and gays alike.  In men and women of all ages.  Let’s put our own houses in order.   There are logs in our eyes and we’re still worrying about the specks in our neighbors’.

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9 thoughts on “It’s just those damned activist judges again, making trouble for the rest of us….

  1. The whole notion of “activist judges” is essentially a ruse. The fact is, conservatives only care to point out such “activism” when it rulings go against their own political beliefs and principles. When rulings go the other way it isn’t activism, it’s justice, or its rooted in the Constitution, etc.

    It’s often used that way and I’ve joked that a working definition of an “activist judge” is “a judge whose rulings are disliked by social conservatives.”

    But you’re missing the point that – if you eliminate all of the hypocrisy – there is a reasonable and very principled position lying underneath it: that the judiciary should not be an active agent of change.

    Now, I’m going to stipulate that this particular ruling in Iowa is not a good example of this argument. As you rightfully pointed out, this ruling overturns 1998 law explicitly stating that marriage is reserved for heterosexual couples. One might argue that the case is wrongfully decided, but it’s difficult to say that it’s a result of “activism.”

    Not so for California or Massachusetts. In both of those cases, the courts ruled that the constitutions of those states guaranteed marriage to gay couples and that they should always have done so. Those decisions were not in response to any new law that had been passed to limit marriage; rather, they were saying that (constitutionally!) marriage had always been open to both straight and gay couples and that those guarantees had been infringed for centuries.

    This is not only nonsense, it’s dangerous, foolish nonsense that should worry gay marriage advocates. These rulings can be overturned by judges as easily as they are made, and they all but guarantee reaction such as Prop 8. It’s thanks to these judicial decisions that anti-gay-marriage language has been codified in the state constitutions of so many states.

    What I have never seen gay marriage advocates do – and what I would whole-heartedly endorse – is acknowledge that they are trying to expand/change the definition of marriage and that they are seeking a constitutional amendment to codify that change. That’s what was done with the 19th Amendment – with regard to voting, rather than marriage rights – and suffrage is now in the constitution where it’s meaning is clear, where it’s very hard to change, and in a way where the opposition had to concede they’d been beaten in a fair fight.

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  2. Tom, that’s an excellent point. It reminds me of Lincoln’s effort to free the slaves. He wanted, wisely, to do so by changing the Constitution. He never intended to fight the Civil War in order to free the slaves. His hand was forced by the war, in fact. Similarly, this sort of push through the judiciary can have unintended backlash. That’s what I mean when I say that judges can be checked by higher courts. This limits the efficacy of their “activism” as it were. I would certainly like to see these changes implemented through changes to the Constitution.

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  3. Your post reminds me of the similar hypocrisy found in conservatives supposed fealty to “small government.”

    Small government is good except when conservatives wish to use government or governmental entities to push their issues: restrict marriage, impose their science, prayer in school, censorship public and school libraries.

    It just depends.

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  4. This is not only nonsense, it’s dangerous, foolish nonsense that should worry gay marriage advocates. These rulings can be overturned by judges as easily as they are made, and they all but guarantee reaction such as Prop 8. It’s thanks to these judicial decisions that anti-gay-marriage language has been codified in the state constitutions of so many states.

    Nonsense? I can apply 19th century legal traditions (through underlying principles) to this argument and reach the same result the court did (I’ll make this into a larger post hopefully soon). Of course, those whose minds are too focused on the rights issues and not focused on traditional state police powers issues won’t see things the way I and most classically liberal legal theorists view things.

    When there are enough of these rulings under the belt at the state level, the federal courts will have more than enough precedent to apply heightened scrutiny at the federal level under current Equal Protection jurisprudence per the 14th Amendment. When that happens, justice will be done once and for all and there will never be enough for a federal marriage amendment.

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  5. I’m not really fond of amending the Constitution but the language of such could be as simple as changing a few words in the XIX Amendment. I don’t think it necessary however.

    The XIX Amendment,

    “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

    “Congress shall have power to enforce this article by appropriate legislation”

    An equality of marriage amendment might read,

    The rights of citizens of the United States to marriage shall not be denied or abridged by the United States or by any State on account of gender.

    Congress shall have power to enforce this article by appropriate legislation

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