Activist Judges are Legislating From the Bench!

“We did not ask for this fight. This fight was forced upon us by those who are seeking to redefine marriage in court by cozying up to activist judges. Activist judges liberally read their own thoughts and views into constitutions in order to ‘find’ rights which don’t exist. The people have a right to be heard through a referendum. A referendum gives the people the opportunity to speak clearly through their Constitution, not only to legislators and governors, but also to judges.”

Senator Jeff Miller (R-Cleveland)

"If activist judges don't stop challenging the Defense of Marriage Act that protects states from being compelled to recognize gay marriage, I'll push for passage of a constitutional gay marriage ban."

Republican Senate Majority Leader Bill Frist

“Same-sex marriage should not be imposed on this country by a handful of activists and judges. The most egregious act of activist judges is making a ruling that creates law. Judicial action of that nature needs to be corrected and an amendment would prevent judges from making law with regard to gay marriage. It’s not their province to make that kind of law,”

Reps. Warde Nichols (R) and Andy Biggs, (R)

"Many think this isn't enough, because of the activist judges legislating new laws instead of interpreting them."

A Call to Arms

The term "activist judge" is always applied to any judge who rules in favor of gay marriage. The public thinks that only these activist judges see any reason to proclaim that same-sex marriage is Constitutional and should therefore be legal.

The truth is, these people know that when gay marriage issues hit the courts, and the fear the Supreme Court more than any, it will be found to be beneficial, not harmful and the ultimate ruling would support marriage between homosexual people. That fear is what drives them toward changing their State Constitutions. The fear is drummed up by the Republican Party, who now is sure that if they throw the scare of supporting gay marriage in the face of any issue, the people will support them, elect them, and approve of their policies no matter how harmful those policies might be to the people doing the voting.

But are the charges true? Are judges legislating new laws instead of interpreting laws already on the books? Let's let the record speak for itself. All three recent decisions concerning gay marriage spoke to this point. Once again, let's look at the decision in the New York City case by Justice Doris Ling-Cohan:

Defendant and amici argue that, if plaintiffs and other same-sex couples are to be allowed to enter into civil marriages, such decision should be made by the Legislature, rather than by the courts. This “legislature deference” argument was similarly used to urge the United States Supreme Court to uphold racial classifications in marriage in Loving v. Virginia.

As this Court noted in its August 20, 2004 decision on a previous motion in this case, it is clear that the courts have jurisdiction to rule on the constitutionality of statutes. Hernandez v. Robles, supra. "The role of the judiciary is to enforce statutes and to rule on challenges to their constitutionality either on their face, or as applied in accordance with their provisions." Benson Realty Corp. v. Beame, 50 NY2d 994, 996 (1980), appeal dismissed sub nom Benson Realty Corp v. Koch, 449 US 1119 (1981). As the New York Court of Appeals has recently reiterated: “[t]he Court ... plays a crucial and necessary function in our system of checks and balances. It is the responsibility of the judiciary to safeguard the rights afforded under our State Constitution.”

Here is how the opinion in the Massachusetts Goodridge case viewed the action of the court:

In ruling that the Commonwealth could not do so, the court observed that the Massachusetts Constitution "affirms the dignity and equality of all individuals," and "forbids the creation of second-class citizens." It reaches its conclusion, the court said, giving "full deference to the arguments made by the Commonwealth." The Commonwealth, the court ruled, "has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples." The court affirmed that it owes "great deference to the Legislature to decide social and policy issues." Where, as here, the constitutionality of a law is challenged, it is the "traditional and settled role" of courts to decide the constitutional question. The "marriage ban" the court held, "works a deep and scarring hardship" on same-sex families "for no rational reason." It prevents children of same-sex couples "from enjoying the immeasurable advantages that flow from the assurance of 'a stable family structure in which children will be reared, educated, and socialized."' "It cannot be rational under our laws," the court held, "to penalize children by depriving them of State benefits" because of their parents' sexual orientation."

If total deference to the Legislature were the case, the judiciary would be stripped of its constitutional authority to decide challenges to statutes pertaining to marriage, child rearing, and family relationships, and, conceivably, unconstitutional laws that provided for the forced sterilization of habitual criminals; prohibited miscegenation; required court approval for the marriage of persons with child support obligations; compelled a pregnant unmarried minor to obtain the consent of both parents before undergoing an abortion; and made sodomy a criminal offense, to name just a few, would stand. Indeed, every State court that has recently considered the issue we decide today has exercised its duty in the same way, by carefully scrutinizing the statutory ban on same-sex marriages in light of relevant State constitutional provisions. See Brause vs. Bureau of Vital Statistics, No. 3AN-95-6562CJ (Alaska Super.Ct., Feb. 27, 1998) (concluding marriage statute violated right to privacy provision in Alaska Constitution) (superseded by constitutional amendment, art. I, § 25 of the Constitution of Alaska); Baehr v. Lewin, 74 Haw. 530, 571-580 (1993) (concluding marriage statute implicated Hawaii Constitution's equal
protection clause; remanding case to lower court for further proceedings); Baker v. State, 170 Vt. 194, 197-198 (1999) (concluding marriage statute violated Vermont Constitution's common benefits clause). But see Standhardt v. Superior Court, 77 P.3d 451 (Ariz.Ct.App.2003) (marriage statute does not violate liberty interests under either Federal or Arizona Constitution). See also Halpern v. Toronto (City), 172 O.A.C. 276 (2003) (concluding marriage statute violated equal protection provisions of Canada's Charter of Rights and Freedoms); Eagle Canada, Inc. v. Canada (Attorney Gen.), 13 B.C.L.R. (4th) 1 (2003) (same).

Finally, there's the King County decision in Washington State:

It is the sworn task of the courts both to vigorously defend the equal rights of all individuals and also to sedulously support the laws duly enacted by the people through their representatives.

In our democracy, we are all governed by laws that are enacted by the people through their elected representatives. Those laws should effectuate the goals of society as seen by the majority of citizens. While the courts have a key role to play in seeing that these laws are fairly and consistently applied, the courts generally do not sit in judgment of the laws themselves.

When the court is asked to sit in judgment of a law, it is not to consider whether, in its view, the law is wise or consistent with sound policy. These are matters for the people and their chosen legislators to weigh. The court’s role is limited to holding the challenged law up to the state and federal constitutions – the foundations of our rule of law – to see if it satisfies the constitutional requirements. Rather than its own personal preferences, the court is required to apply a consistent, principled and reasoned analysis in evaluating the statute’s constitutionality. Through this brilliant design, the constitutions empower the courts to ensure both that no group is singled out for special privileges and also that no minority is deprived of rights to which its members should be entitled. At the same time, respect for democratic lawmaking is maintained.

Proper respect for the separation of powers requires that, as to most laws subjected to challenge, the court will show great deference to the legislature. In most such cases, the court applies what is called “rational basis” review. Under this type of review, a statute will be found constitutional if it can be said that it is rationally related to a legitimate state goal or purpose.

Some challenged laws, however, call for what is called a “heightened scrutiny” by the courts. When the statute in question burdens a “fundamental right” or a “suspect class”, it must pass a more rigorous test in order to satisfy the constitutions. The goal or purpose being sought must be deemed a “compelling state interest” and the means implemented toward that goal must be “narrowly tailored” toward that end.

There are a couple different potential remedies that flow from the constitutional violations found by this Court and there is one overarching practicality. That practical consideration is that all parties have stipulated that review of this case by the State Supreme Court will occur and be expeditiously pursued. That body will, as it should, write indelibly on the same slate on which this Court has been scratching. Whether it agrees with some, all or none of what this Court has said, there can be no doubt that the Supreme Court will clearly articulate to the parties, to the legislature and to the public what should next occur. It also may well be that during the pendency of this appellate review, the legislature will enact some changes in the laws that could impact the Supreme Court’s analysis. Since these are issues purely of law, that circumstance should not necessitate a remand without issuance of some definitive high court ruling.

Now does this sound like activism on the part of any of these three courts? Are they legislating from the bench? Or are the doing their job and viewing arguements in the light of mandated State and Constitutional law? When one takes the actual time to read through these three decisions, the answer becomes obvious.

The exact same whining and name calling took place during the period between the Perez decision in 1948 and the final Supreme Court ruling on interracial marriage, Loving v Virginia, in 1967. In fact, almost the exact same arguments were used and almost the exact same states had anti-miscegenation laws as have anti-gay marriage laws today. Is it any wonder that some of these politicians want to legislate laws making it illegal for the courts to consider cases involving gay marriage?

Truth is, they know what's going to happen.