Gay Marriage Decision Should be Election Issue
“Today’s decision invalidating the gay marriage ban enacted by California voters is a quintessential example of judicial activism that should disturb all Americans, while reminding them of what’s at stake this November when they go to the polls to elect the politicians who appoint and confirm state and federal judges. The California decision also serves to remind Americans that the threat posed by judges who defy the constitutional limits on their authority is hardly limited to the federal courts. Indeed, as the U.S. Supreme Court has become less hospitable to the advocates of judicial activism, they have increasingly turned to state courts to enact the political agendas they have been unable to implement democratically.
“Today’s overreach by the California Supreme Court is classic judicial activism in that the court’s holding bears no resemblance to the constitutional text it purports to interpret. In the lofty but vacuous language typical of judicial activism, the court discovered a right to have one’s 'family relationship accorded dignity and respect equal to that accorded other officially recognized families.' Whatever one thinks of this new right – which would seemingly apply to polygamous families as well – it is nowhere to be found in the California Constitution.
“As is so often the case with judicial activism, today’s decision is a triumph for the ultra-liberal groups committed to using activist courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means such as legislation and ballot initiatives. In this case, not only were California’s liberal voters unwilling to enact the agenda of gay rights groups, but Californians explicitly voted to ban gay marriage by an overwhelming 61% margin in 2000. However, four Justices of the California Supreme Court think they know better. Talk about being elitist!
“This blatant act of judicial activism should disturb all Californians – indeed all Americans – regardless of whether they favor or oppose gay marriage as a matter of policy. After all, a court powerful enough to invent new constitutional rights is a court powerful enough to take away any constitutional right. Barack Obama ought to keep that in mind before he opines again that a judge should 'bring in his or her own perspectives, his ethics, his or her moral bearings.' At very least, he should explain to voters why his view is not a prescription for limitless judicial power.
“California voters might have an opportunity in November to re-enact the gay marriage ban as a constitutional amendment, effectively overriding today’s decision. But on the federal level and in many states, voters have but one recourse for fighting judicial activism and that’s electing presidents, governors, Congressmen, and state legislators – or in some states, judges themselves – who don’t believe that a judge’s 'moral bearings' should trump those of the people.
“Finally, keep in mind that my criticism of today’s decision is not based on policy arguments for or against gay marriage, nor on any notion that invalidating democratically enacted laws to protect legitimate constitutional rights is judicial activism. Instead, my criticism is based on the knowledge that the California constitution does not permit the state’s courts to invent new constitutional rights, no matter how wonderful the new rights might be.”
For a further discussion of how judicial activism is used to achieve unpopular political agendas, see here