Originally posted on Tuesday, May 20, 2008.
My first thought when I heard that the California Supreme Court had overturned the anti-gay marriage initiative was joy. My second was, "How is this going to affect the presidential election?" My third was, "Oh geez, here come the uneducated accusations of 'judicial activism' again."
Few things bother me more than when people who don't know what they're talking about start to whine--often loudly--about something important. (Like all the journalists who quickly wrote that the California case would likely be appealed to the U.S. Supreme Court despite the fact that no federal issues were raised on appeal and the case was decided entirely on state law. It's called a lawyer, news outlets. Hire one. It's not like people depend on you for, like, accurate news or anything. But that's a different complaint.)
Every time a court hands down a ruling that conservatives don't like, they cry foul and shout "judicial activism!" In a certain sense, one man's conception of legislating from the bench (dirty dirty bad) is another man's conception of interpreting the Constitution (yay hooray good). But in California, the judicial activism complaint holds less water. Here's why.
In California the legislature voted twice in favor of gay marriage. Arnold, the Governator, vetoed the bills both times, saying that judges should decide it. In California, the governor, members of the legislature, and judges are all elected. (Well, judges are appointed subject to retention in the next election, but practically the same thing.) You don't get much more democratically elected than that combination! And six of the seven justices that decided the gay marriage case were appointed by Republicans. Boo yah! It's fun to note that in Massachusetts when the Supreme Judicial Court ruled in favor of gay marriage, the conservatives cried, "Oh no! Let the people decide!" In California, Arnold said, "Let da judges decide." Um, ya can't have it both ways, folks!
There are those who will say, "But the people did decide. Prop. 22--voted into law by the people--defined marriage as between a man and a woman and the court overturned the will of the people." Not exactly. Constitutional law is hard stuff. One thing I didn't know before law school is that when legislatures pass laws, they don't necessarily have to be "checked" for constitutionality. That's why we have courts. While the majority of the members of Congress are lawyers, the majority of members of state legislatures are not lawyers. And when you put a proposition on a ballot for a whole state to vote on, even fewer of a percentage of those deciders will be lawyers. Members of the general public are not constitutional experts. So the people passed a proposition? Big deal. It still has to be evaluated to see if it's legal. And the Supreme Court of Cali emphasized that point quite eloquently:
Although, as noted at the outset of this opinion, we agree with the Attorney General and the Governor that the separation-of-powers doctrine precludes a court from 'redefining' marriage on the basis of the court's view that public policy or the public interest would be better served by such a revision, we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question. On the contrary, under 'the constitutional theory of 'checks and balances' that the separation-of-powers doctrine is intended to serve' (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53), a court has an obligation to enforce the limitations that the California Constitution imposes upon legislative measures, and a court would shirk the responsibility it owes to each member of the public were it to consider such statutory provisions to be insulated from judicial review." In re Marriage Cases, No. S147999, slip op. at 109 (Cal. May 15, 2008).
Driving the point home, the court quoted Chief Justice Burger of the U.S. Supreme Court, who emphatically stressed that "[i]t is irrelevant that the voters rather than a legislative body enacted [the challenged law], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." Id. at 113-14 quoting Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295 (1981) (emphasis supplied by CA Sup. Ct.).
When you look at the issue through this lens, it becomes quite clear: the people of California passed an unconstitutional proposition... and the justices fixed it. Funny how it's never judicial activism when the issue at hand is a conservative one (Terri Schiavo or medical marijuana in California, anyone?), but remarkably, when it's a progressive issue, the courts are somehow legislating from the bench. (See http://www.nytimes.com/2005/04/19/opinion/19tue3.html).
So if you have a family member or friend who is yapping incessantly about those darn "activist judges," feel free to pass these 2 1/2 cents along courtesy of moi.
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