In a post I also quoted in my previous blog entry, Eugene Volokh writes:
It’s unclear from this if Professor Volokh also objects to the Goodridge ruling in Massachusetts (since those judges weren’t federal) – but even if he doesn’t, many other folks have, on grounds similar to those suggested by the Professor here. Although legal equality is a noble goal, it should happen through the normal democratic process, not through judicial rulings.
I’m sympathetic to this – ideally, all changes would happen through respectful debate in the marketplace of ideas, which would lead citizens to band together behind the stronger idea.
Nonetheless, that’s not exactly how things are happening. So what should judges do? Suppose for a moment that the four Goodridge judges were acting in good faith. To the best of their understanding of the Massachusetts Constitution, the state may not discriminate against same-sex couples when issuing marriage licenses.
What then?
I’m not sure that I like the idea of judges saying, “well, in the best understanding of the law I can muster, equal protection means that marriage discrimination of this sort is unconstitutional. But it’s wrong for changes like this to come from the bench. Therefore, I’m going to vote to support a law I believe is legally unconstitutional.”
Maybe this is overly idealistic of me, but I’d prefer judges to decide what is constitutional based solely on their good-faith understanding of the law and the Constitution. To make Constitutional decisions based on anything else seems, somehow, to be stepping outside the bounds of a judge’s proper role.
Nonetheless – if we assume that the Goodridge judges acted in good faith – that’s the sort of decision-making process that many of their critics must be advocating..
Maybe this is overly idealistic of me, but I’d prefer judges to decide what is constitutional based solely on their good-faith understanding of the law and the Constitution. To make Constitutional decisions based on anything else seems, somehow, to be stepping outside the bounds of a judge’s proper role.
I don’t think it’s overly idealistic at all. A generally democratic society needs a constitution and an independent judiciary to guarantee the rights of individuals and minority groups against a potential tyranny of the majority. Disparaging references to “unelected judges” are an all too common cheap trick designed to make people forget that.
If there’s anything in your post that’s overly idealistic, I think it’s this:
[I]deally, all changes would happen through respectful debate in the marketplace of ideas, which would lead citizens to band together behind the stronger idea.
If you’ll pardon the mixed metaphor, in the marketplace of ideas, the race is not always to the swift.
I actually disagree strongly with the idea that legal equality should be reached only through the normal democratic process, because the normal democratic process just doesn’t function to protect the rights of minorities. That’s why we have a Bill of Rights at all–so that some things are outside of democratic control. I will never get the argument that we should be putting this issue to a vote, because my view is that same-sex couples have a right to make the same choice about whether to marry or not that heterosexual couples make. And if it’s a right, then it shouldn’t be subject to anyone else’s, or any group’s, control. To put same-sex marriages to a vote, even if they were supported by a majority and would pass, would be to make the ability of same-sex couples to marry a gift from the heterosexual majority, which could always be taken away again.
I think this whole ‘activist judges’ and ‘judicial fiat’ idea is simply a dishonest misdirection tactic.
The judicial branch’s job is to interpret the law. If a panel of judges interprets two laws to be contradictory, they have every right to invalidate both, and inform the legislature to pick which law they think should be ‘the law.’
However, when one of the ‘laws’ happens to be the Constitution, either of the state or the nation, the choice is simple. A judge can not invalidate the Constitution. Neither can a judge allow a law to stand that violates the Constitution. If a law is found by the Judicial branch to be un-Constitutional, the law must be stricken down.
If this power is taken away, the Constitution becomes a dead-letter. Congress could pass a law tomorrow eliminating freedom of speech. Judges could say ‘tsk tsk’ all they want, but if they don’t have the power to eliminate the law, Congress could simply let it stand.
And there is a reason why some of the major first positive steps in the Civil Rights movement came through the courts — the ‘people,’ through Congress, are not very good at protecting the rights of minorities. Often, minorities won’t even be represented at all by Congress, if they find them selves with the need to fight for their constitutional rights in the first place.
There is also a reason that so many laws that violate the Constition are stricken down by the judicary: Congress doesn’t take a lot of time weighing the Constitutionality of their laws all too often.
Activist judges my left foot.
The balancing of rights is actually quite tricky, I think. Yes, I believe that it is preposterous to have marriage available, but only for correct couples. Still, if I were a judge, in addition to my own view, I would have to take seriously the precedent, and the world as it is.
Ultimately, may I restate Prof. Volokh’s point to say that if , as a judge, I see that the arguments aren’t strong enough to convince the populace of the state, I must take a second look at why I find myself in the minority? Yes, after taking that look, I must use my own judgement, but I should take the judgement of others into account as well?
Just wondering,
-V.
I’m sure judges already do take the majority opinion into account. Doesn’t mean that majority opinion is right, fair, or constitutional.
But it is interesting to ask why one is in the minority. Why are there fewer SSM advocates than opponents? Maybe it has to do with age. Most Americans today are baby boomers and older (we keep delaying death); they grew up when religion, and the belief that homosexuality is “icky,” played an important role in culture. There were fewer out gay people, and probably also fewer divorces; marriage meant something different than it does now. It’s hard to shake opinions you’ve been taught to hold. (Which isn’t to say no younger people oppose same-sex marriage, but there are probably fewer of them, and they probably have different reasons than the “icky” factor.)
Education might have something to do with it, too. I’ve heard that the more degrees one has, the more liberal one is, for whatever reason. And really, the mainstream media couldn’t care less about the nuances of the same-sex marriage argument, so most people aren’t getting the details they need to make an informed decision on the matter either way.
Of course, I’m just guessing…
Interestingly, women are a lot more pro same-sex marriage than men, too.
Interestingly, women are a lot more pro same-sex marriage than men, too.
Women aren’t, in general, afraid of being raped by gay men, which fear I think is the root cause of most anti-gay feeling in the US. Thus more tolerance for gays in general and thus more tolerance for SSM.
Consider “f*ck you”. At root, it’s a threat of rape: “I will f*ck you”.
Women aren’t, in general, afraid of being raped by gay men, which fear I think is the root cause of most anti-gay feeling in the US. Thus more tolerance for gays in general and thus more tolerance for SSM.
If that’s it, then I’m surprised there are so many women who are in favour of heterosexual marriage.
Interestingly, women are a lot more pro same-sex marriage than men, too.
My very tentative theory about this is that it has to do with gender roles. The biggest support an anti-SSM amendment seems to be couched in terms of sexual complementarity and the fact that a couple consisting of two women is somehow fundamentally different from a couple consisting of a woman and a man.
Women, in general, are more confined by the “pink box” than men are by the corresponding “blue box”. Therefore, women have more to lose from an attempt to legislate gender roles, and would be expected to protest more vigorously any such attempt.