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’.