Whenever strict constructionists
decry judicial activism on the part of the courts, partisans of the imperial
judiciary and its typically liberal agenda are quick to dismiss such concerns
with a question: “Judicial activism? What judicial activism?”
Behold the November 18 Goodridge vs. Massachusetts Department of Public Health
decision by the Massachusetts Supreme Judicial Court in favor of gay marriage.
Even the media coverage of this ruling concedes that its decision on this
contentious social issue was highly controversial. But it was also
as stark an example of judicial activism as can be found.
Our political system as designed by the Founding Fathers divides power between
executive, legislative and judicial branches. It is the role of the
legislature to make laws, the executive to provide for their implementation
and enforcement and the judiciary to adjudicate disputes arising from the
law, including the compatibility of said laws with our the highest law of
our land, constitutional law. The powers vested in the judiciary may
require courts to issue unpopular decisions or even to rule that laws commanding
majority support are unconstitutional. But this does not empower judges
to summarily overturn laws they disagree with on policy grounds and replace
them with something closer to their own views; to do so would be to overstep
the legitimate powers of the judiciary and usurp those properly belonging
to the legislature.
Yet this is precisely what the Massachusetts Supreme Judicial Court did in Goodridge.
Rather than act according to constitutional principles and uphold the written
law, a bare majority of judges made their ruling on the basis of their own
personal opinions, substituting their policy preferences for the rule of
law. The text of the decision makes clear that the majority weighed
the arguments for and against gay marriage and found the former more persuasive
than the latter. You may evaluate those arguments for yourself and
agree with that judgment. But a court of law is not the same thing
as a panel that determines the winner of a debate tournament. Courts
are not tasked with deciding the merits of competing political arguments
in order to resolve thorny issues. Instead, they are charged with interpreting
and upholding laws they did not themselves make.
For starters, Goodridge
takes the position that “barring an individual from the protections, benefits,
and obligations of civil marriage solely because that person would marry
a person of the same sex violates the Massachusetts Constitution.”
But nobody imagined that the commonwealth’s constitution, which actually
predates the U.S. Constitution, required same-sex marriage until the last
few years. The idea never occurred to any previous supreme judicial
court. It is contrary to precedent and common law. Not so long
ago, a lower Massachusetts court had simply thrown this case out.
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Chief Justice Margaret Marshall’s majority opinion flatly states, "The marriage
ban works a deep and scarring hardship on a very real segment of the community
for no rational reason." Here she is not arguing from the law, but
arguing with opponents of gay marriage. You may agree with her that
the merits of gay marriage exceed those of the arguments being made against
it, but even if those arguments are mistaken some of them surely at least
have a rational basis. As commentator and World magazine editor
Marvin Olasky has written, this assertion boils down to, “Gay marriage is
good and you’re nuts if you don’t think so.” That argument might be
many things, but it isn’t law.
The phrase “marriage ban” is itself prejudicial. It presumes that what
is being discussed here is a set of unions equivalent to traditional marriage
that the state has proactively banned rather than whether the historic definition
of marriage as a union between one man and one woman will be altered.
This is a presumption that is not required by the Massachusetts Constitution
and one that opponents of same-sex marriage proposals reject. Yet rather
than neutrally applying the law, the court is merely taking sides in the
The court rejected the idea that marriage and procreation have anything to
do with each other. Instead, it came up with the following reason for
its existence: "Civil marriage anchors an ordered society by encouraging
stable relationships over transient ones. It is central to the way the Commonwealth
identifies individuals, provides for the orderly distribution of property,
insures that children and adults are cared for and supported whenever possible
from private rather than public funds, and tracks important epidemiological
and demographic data." This sounds like a bureaucrat’s formulation
if one has ever been heard. While marriage does in fact do some of
these things, this definition comes from nowhere other than the justices’
own creative juices and is certainly a subjective proposition with which
people could rationally disagree.
The court also dismissed the vast body of evidence that children fare best
with a father and a mother to hold that the current definition of marriage
keeps children of same-sex couples from enjoying a stable family structure.
“It cannot be rational under our laws,” Marshall wrote in her majority opinion,
“to penalize children by depriving them of State benefits" because of their
parents' sexual orientation.” This is certainly a rational argument,
but it is not the only argument that can be made nor is it the only interpretation
of what preserving the traditional definition of marriage entails.
Proponents of traditional marriage might argue that it in fact offers what
empirically is the most successful arrangement for raising children and policies
that remove maximum social and legal encouragement of this arrangement will
do more damage to children’s interests in the long term. My purpose
here is not to make the case against gay marriage. Many Americans share
the viewpoints held by Chief Justice Marshall and her colleagues and would
agree with the conclusions reached in the Goodridge decision. But we don’t appoint judges to make policy decisions for us and Goodridge
was little more than an attempt to achieve a specific policy result on gay
marriage, which the majority held to be desirable, and find some constitutional
justification (usually in the form of taking phrases like “equal rights”
and turning them into ideological abstractions without any historical context)
The Massachusetts Supreme Judicial Court usurped social policy-making authority
that properly belonged to the state legislature. Whether state legislators
will do anything about it is unclear. Certainly some of them are outraged.
They are joined by Massachusetts Republican Gov. Mitt Romney and Democratic
Attorney General Thomas Reilly, who have both criticized the decision.
"Decisions like this should be made by the legislature, not a court. And
certainly not by a four to three decision of the court," Reilly contended.
"You know you need to have a full discussion. You need to have an open debate
and those debates take place in the legislature."
Justice Martha Sosman’s dissenting opinion, as quoted in a synopsis on the
Massachusetts SJC’s website, also points out why this is a more appropriate
question for the legislature: “the issue is not whether the Legislature's
rationale behind [the statutory scheme being challenged] is persuasive to
[the court]," but whether it is "rational" for the legislature to "reserve
judgment" on whether changing the definition of marriage "can be made at
this time without damaging the institution of marriage or adversely affecting
the critical role it has played in our society." She concluded that
the court was wrong to rule that the commonwealth’s position in favor of
traditional marriage failed the rationality test: "[a]bsent consensus on
the issue (which obviously does not exist), or unanimity amongst scientists
studying the issue (which also does not exist), or a more prolonged period
of observation of this new family structure (which has not yet been possible),
it is rational for the legislature to postpone any redefinition of marriage
that would include same-sex couples until such time as it is certain that
redefinition will not have unintended and undesirable social consequences."
A fair legislative fight rather than activist judges making law from the
bench might have spared us more than four decades of church-state wrangling
which most recently manifested itself in Alabama’s Ten Commandments dispute
or the rancorous 30-year national abortion debate that followed Roe vs. Wade.
But this is not good enough for judges who think they know best or their
ideological enablers who want to impose agendas on the country that cannot
prevail through democratic means.
Judicial activism is real and it has produced many jurists who see themselves
less as judges than philosopher-kings ready to rule and dispense their wisdom
to the great unwashed masses. Unfortunately, with such activism becoming
the norm few people are willing to call these legislator-judges what they
truly are. One exception is California State Supreme Court Justice
Janice Rogers Brown, who I must credit with the “philosopher-kings” line.
Yet her Senate confirmation for a federal judgeship is being held up, ironically
by legislators whose very powers are being usurped by activist judges.
But it is to be expected that as judges become legislators their confirmation
hearings begin to resemble election campaigns. Today’s judicial nominee
just might cause tomorrow’s social upheaval.
W. James Antle III is a Senior Editor for EnterStageRight.com and a primary columnist for IntellectualConservative.com. He is a freelance writer from Boston, Massachussetts.
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