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.

The purpose of marriage is the procreation of children.

Here's what the opposition has to say about children and gay marriage:

"A same-sex union is not a physical union that transmits human life, producing children. A same-sex union is not the joining of two complementary natures that complete each other. Simply stated, a same sex union is not marriage. The idea that homosexuals can create same sex 'marriage' through their individual choice is false."

On Same Sex Marriage

"The understanding in our society is that the heterosexual, marriage-based family arises from respect for the fact that the relationship between man and woman existed in the context of a commitment to procreation, as ordained by Almighty God. That commitment to procreation then led to a marriage institution that entailed upon the man and the woman certain responsibilities that transcended their feelings — their gratifications, their joy or sorrow in the marriage, once they had made their commitment to the Constitution."

Marriagedebate.com

"The truth is that the original and most basic reason for the existence of marriage is to provide a stable environment for the rearing of children. It is an indisputable biological fact, of course, that both a mother and a father are required to bring a child into the world. More and more studies are being produced showing that children grow up healthier, better adjusted and more likely to succeed in life if they grow up with both a mother and a father."

Gay Marriage Laws Provoke Thought About Reason For Bond

"Homosexual marriage will harm children by denying them the love and nurture of a mom and dad. The only "procreation" homosexuals can engage in requires that a third party must be brought into the relationship."

Talking Points: Why Homosexual Marriage Is Wrong

The fact that homosexuals can't have children in the "natural" sense has long been one of the chief agreement against allowing same-sex couples to marry. The Massachusetts State Supreme Court in the case of Hillary Goodridge & others v. Department of Public Health & another, handled this argument in a way that leaves little doubt about the legality of this opinion. In fact, two of specifically listed "facts" were used by the opposition as to why Massachusetts should not allow gays to marry concerned procreation and the raising of children. These included:

(1) Marriage provides a "favorable setting for procreation."

(2) Marriage ensures the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex."

Below is Chief Justice Margaret H. Marshall's opinion for the majority that meets these two arguments squarely:

Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). [FN22] People who cannot stir from their deathbed may marry. See G.L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. [FN23]

Moreover, the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual. [FN24] If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry," post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that samesex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. [FN25]

The department's first stated rationale, equating marriage with unassisted heterosexual procreation, shades imperceptibly into its second: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Protecting the welfare ofchildren is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy. "The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household." Troxel v. Granville, 530 US 57, 63 (2000).

Massachusetts has responded supportively to "the changing realities of the American family," id. at 64, and has moved vigorously to strengthen the modern family in its many variations. See, e.g., GL c. 209C (paternity statute); GL c. 119, § 39D (grandparent visitation statute); Blixt v. Blixt, 437 Mass. 649 (2002), cert. denied, 537 US 1189 (2003) (same); E.N.O. v. L.M.M., 429 Mass. 824, cert. denied, 528 US 1005 (1999) (de facto parent); Youmans v. Ramos, 429 Mass. 774, 782 (1999) (same); and Adoption of Tammy, 416 Mass. 205 (1993) (coparent adoption). Moreover, we have repudiated the common-law power of the State to provide varying levels of protection to children based on the circumstances of birth. See GL c. 209C (paternity statute); Powers v. Wilkinson, 399 Mass. 650, 661 (1987) ("Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy"). The "best interests of the child" standard does not turn on a parent's sexual orientation or marital status. See e.g., Doe v. Doe, 16 Mass.App.Ct. 499, 503 (1983) (parent's sexual orientation insufficient ground to deny custody of child in divorce action). See also E.N.O. v. L.M.M., supra at 829-830 (best interests of child determined by considering child's relationship with biological and de facto same-sex parents); Silvia v. Silvia, 9 Mass.App.Ct. 339, 341 & n. 3 (1980) (collecting support and custody statutes containing no gender distinction).

The department has offered no evidence that forbidding marriage topeople of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit. Moreover, the department readily concedes that people in same-sex couples may be "excellent" parents. These couples (including four of the plaintiff couples) have children for the reasons others do--to love them, to care for them, to nurture them. But the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws.

While establishing the parentage of children as soon as possible is crucial to the safety and welfare of children, see ., 435 Mass. 285, 292 (2001), same-sex couples must undergo the sometimes lengthy and intrusive process of second-parent adoption to establish their joint parentage. While the enhanced income provided by marital benefits is an important source of security and stability for married couples and their children, those benefits are denied to families headed by same-sex couples. See, e.g., note 6, supra. While the laws of divorce provide clear and reasonably predictable guidelines for child support, child custody, and property division on dissolution of a marriage, same-sex couples who dissolve their relationships find themselves and their children in the highly unpredictable terrain of equity jurisdiction. See E.N.O. v. L.M.M., Supra. Given the wide range of public benefits reserved only for married couples, we do not credit the department's contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent 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." Post at (Cordy, J., dissenting). [FN26]

The preferential treatment of civil marriage reflects the Legislature's conclusion that marriage "is the foremost setting for the education and socialization of children" precisely because it "encourages parents to remain committed to each other and to their children as they grow." Post at (Cordy, J., dissenting).

In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation.

The case of Heather Anderson and Leslie Christian; et al., v. King County, et al., heard in the Superior Court of Washington State for King County also ruled against the idea that marriage is about raising children. In his opinion, Justice William L. Downing had this to say:

The link between civil marriage and procreation is not what it was when the laws prohibited both adultery and ready access to contraception. Then, it could well be said that love, marriage and baby carriage would come in predictable sequence. The laws of today recognize the reality that a substantial amount of procreation occurs outside ofthe marital relationship. See, R.C.W. 26.26, the Uniform Parentage Act. Of course the laws never have placed a requirement on marriage that the parties procreate nor do they prohibit from marriage those who are unable or disinclined to procreate. Many families today are created through adoption, the foster parent system and assisted reproduction technologies. This last point, by the way, is well illustrated by some of the plaintiffs who, thanks to government recognition of the fact that their sexual orientation is no bar to good parenting, are presently able to enjoy family lives with children.

The legal question is not whether heterosexual marriage is good for the replenishment of the species through procreation. It is. The precise question is whether barring committed same-sex couples from the benefits of the civil marriage laws somehow serves the interest of encouraging procreation. There is no logical way in which it does so.

Today the law and society fully recognize (as well they should) the value of children who join the human family by means of in vitro fertilization, sperm donation, egg donation or surrogacy or who join a new family by way of adoption. It rationally serves no state interest to harm certain of those children by devaluing the immediate families that they have joined.

State action to maintain and strengthen the institution of marriage for heterosexual couples is decidedly a means that is rationally related to promoting stable families and is something that is good for children. Again, the precise question before the Court, however, is whether not having the same state-supported relationship available as an option for homosexual couples furthers this same interest. In other words, would adding this benefit for the second group (and their children) injure that legitimate state interest in the support of families and the nurturance of children? Again, there is no logical way in which it would be so.

It is good for children to be raised in stable families with a father and a mother. There is not the slightest question about this. It is a situation to be encouraged by the state. But, can it be said that fewer children will have this stability because couples consisting of two men or two women are allowed to have a relationship that is state-sanctioned? There is no reasonable explanation for why this would be so. There is no reasonable expectation that, should such a legal result come to pass, married fathers and mothers will abdicate their parental responsibilities or young would-be parents will defect from the ranks of heterosexuals.

On the other hand, when one peers into the future, one circumstance is far more certain to occur. Many, many children are going to be raised in the homes of gay and lesbian partners. Present social trends will undoubtedly continue. Gay and lesbian couples will feel the human instinct to wish to raise children, they will have available either the supportive adoption laws or the technological means to begin raising a family and they will enjoy the increasing public acceptance of such families. All this is certain.

One, then, must try to envision two categories of future children. The first category consists of those whose heterosexual parents will either neglect them or never conceive them because same-sex marriage has been legalized. The second category is those children who will be raised in a home with same-sex adult partners and who would enjoy enhanced family stability and social adjustment if these adults were granted the benefits of civil marriage. The only reasonable conclusion is that the very real second category greatly outnumbers the first theoretical one. Therefore, the goal of nurturing and providing for the emotional wellbeing of children would be rationally served by allowing same-sex couples to marry; that same goal is impaired by prohibiting such marriages.

The above conclusion is inescapable when one looks objectively and dispassionately at the properly framed question. It is the same conclusion reached by the Vermont Supreme Court in 1999. “If anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against.” Baker v. State, 170 Vt. 194, 219, 744 A. 2d 864 (1999) (emphasis in original). It is the same conclusion reached by the Massachusetts Supreme Court in 2003. “Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent 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.’” Goodridge v. Department of Public Health, 440 Mass. 309, 335, 798 N.E.2d 941 (2003).

It has also been suggested that the statutory ban on same-sex marriage serves the interest of protecting children from the harms that may be caused by being raised in a non-traditional family. Although many may hold strong opinions on the subject, the fact is that there are no scientifically valid studies tending to establish a negative impact on the adjustment of children raised by an intact same-sex couple as compared with those raised by an intact opposite-sex couple. The offered studies, anecdotal experiences and opinions regarding children from broken homes or children raised by a single parent have no logical relevance. Unlike the documented impact of children’s exposure to domestic violence and substance abuse in the homes of lawfully married heterosexual couples, as to children raised by intact same-sex couples there is no science, only questionable assumptions based on stereotypes.

The Court concludes that the exclusion of same-sex partners from civil marriage and the privileges attendant thereto is not rationally related to any legitimate or compelling state interest and is certainly not narrowly tailored toward such an interest.

It is obviously invalid to assume that the basis of marriage or even sex is the procreation of children. I couldn't name one person who married his wife or husband for the sole reason of having children. Marriage is a relationship. People marry because they want to be in a committed relationship with the person of their choosing for the rest of their natural lives. Having children is a miraculous bonus.

Can you name a married heterosexual couple who married only because their parents or their community desired for them to commit to each other for life in order to raise a family in a healthy environment? Of course not. People just don't marry for those reasons.

Yet, people leave marriages, by divorce and even by murdering their children, in order to marry someone else who appeals to them. Those who've murdered their children, of course, are allowed to remarry even while in jail awaiting the death penalty as long as they divorced their previous mate. Such is the concern for children and the scantity of heterosexual marriage in some extreme cases. Yet no one is screaming to overturn the laws that allow this. To them, the committed marriage between to gays is much worse.

Once you get past the myths and falsehoods perpetrated by the Religious Right, it is obvious that courts have no other choice but to find the marriage between same-sex couples to be Constitutional.