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

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Erik Kain

Erik writes about video games at Forbes and politics at Mother Jones. He's the contributor of The League though he hasn't written much here lately. He can be found occasionally composing 140 character cultural analysis on Twitter.

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9 Responses

  1. Avatar Tom Meyer
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    says:

    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.Report

  2. Avatar E.D. Kain
    Ignored
    says:

    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.Report

  3. Avatar bobroth
    Ignored
    says:

    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.Report

  4. Avatar Dave
    Ignored
    says:

    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.Report

  5. Avatar bobroth
    Ignored
    says:

    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 legislationReport

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