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Judicial Activism, Libertarianism, Federalism, and Gay Marriage
By James Wynn March 26, 2004

Everyone knows that "Activist Judges" are the bane of conservatives in the United States. But what does it mean to say that a judge is "activist"? After all, judges have the power of review over all laws to determine whether they conform to the Constitution (whether state or federal). The law is what they agree it is. So, in that sense, all judges are "activists" or none are, right? What is the difference, essentially, between a conservative judge who says that cops aren't prohibited from tricking suspects into confessing and a liberal judge who says a woman cannot be prohibited from having an abortion?

Well, when conservatives refer to judicial activism, they are typically talking about the discovery of new rights in the constitution after 200 years or the discovery that rights of which the citizens have openly taken advantage of over all that time do not exist.

Conservatives typically presume that to do something like that -- to grant a right that has always largely prohibited or to take away a right that has been widely enjoyed -- it ought to be done by the legislature. Not judges. They presume that for rights to be completely redefined as inalienable or non-existent (as opposed to established or tweaked as in the extent of copyrights in the face of Internet file-sharing, etc.), it should be done only by legislation rather than by judicial fiat.

The Trouble With Rights

So, when the Supreme Court says that every female of child-bearing age has a right to an abortion up to a certain gestation, conservatives ask "if this right was so self-evident, why didn't anyone mention it before?" They ask why-- for example, if the Massachusetts constitution ordains that homosexual marriage is as valid as the traditional sort--why hasn't anyone been doing it up until now?

But it is not only an issue of principle for conservatives. It is a practical issue as well, because it is unavoidable that when you grant a right to one person, you take it from another. By granting teenage girls the right to have an abortion without their parents' knowledge let alone consent, you are taking away the right of parents in that regard. By granting homosexuals the right to legally marry, you strip from states and cities the right to any say over what sorts of unions they will honor. Perhaps, morally, they never should have had that right, but if the people as a whole don't have the wisdom tell right from wrong in this matter, why should a judge?

Rights also confer implied powers: that same unrestricted right of abortion given to 15 year-old girls grants also to adult men increased power to cover up the fact (via legal means) that they are having illegal sex with a minor. It might be argued that that is power that will not often be asserted; yet it is a power that didn't exist before. Although abortion rights were already expanding legislatively prior to the Roe vs. Wade decision, these are the sorts of issues that would have made it impossible for the Roe's universal rights to abortion to be established by most state governments.

The Right to Marry

Which brings us to the constitutional right, recently discovered by the Massachusetts Supreme Court, for persons of the same sex to marry each other. Homosexual marriage has a certain libertarian appeal, and is frequently argued for from that point of view. What business, after all, is it of anyone else if two people want to marry? For heterosexuals, the upshot of marital law has been geared so that if you truly believe you are married, then you are--ipso facto-so long as that marriage would not be other wise prohibited (you are of age and you are already married). So, why shouldn't two homosexuals be permitted to cut a deal with each other in the same way heterosexuals do? The truth is, they can--in every state of the union.

There is nothing to prevent everyone, homosexuals included, from drawing up contracts with each other to establish hospital visitation rights, inheritance rights, etc., and to sue anyone who attempts to interfere with the terms of those contracts. It would be a quite reasonable and achievable goal to petition city, state, and federal institutions pass laws and establish policies to better deal with these "contractual unions". Over time, one could imagine marriage more and more becoming an issue of contract law. And perhaps, as American society becomes more secular and diverse, it should. Even traditionalist Mormons in the mountains of Idaho could have polygamous unions honored in this way if they chose. Jerry Falwell and Tom Delay could not have anything to say about it.

If this were the only question regarding homosexual marriage, there would not be the current cacophony in the courts and legislature. Alas it is not.

You see, advocates for homosexual marriage also say that they need to have access to the institution of marriage because of the legal and economic benefits that it provides. This is the first signal that there is there is something fishy afoot in this desire for Holy Matrimony; that these advocates are after more than they say. Heterosexuals, as a rule, do not marry for the legal benefits. They marry even though it may cost them more in taxes. They don't marry to protect themselves from having to testify against each other in court. Ninety-nine percent of the time, they marry because it is morally appropriate to do so. If marrying for other reasons viewed with approbation by society. Moral appropriateness is not why homosexuals who want to marry, want to do it.

The New Federalists

Amazingly, many social liberals like Rep. Barney Frank and Andrew Sullivan, liberals who cheered the striking down in every state of every regulation regarding abortion and sodomy-who affirmed the mandating that in every state, prayer and religious references in schools should stop immediately-have recently begun to speak of the beauty of Federalism. These New States Righters, these modern Jays and Hamiltons, declare that every state should decide for itself whether to recognize gay marriage. What gives?

What these advocates are after, ultimately, is not for a return to stodgy Federalist government, or an arrival at intellectually pure Libertarian government. They want the power to legally force everyone else in society to approve of their lives. This it is a desire that most people cannot fathom. But it is at the foundation of gay rights activism, and always has been, for a lot of good reasons. Those who practice homosexuality openly are disapproved of-often cruelly-by their families, their churches, their neighbors, even strangers. Changing people's opinions about homosexuality is not practical in the short term. Forcing people by law to act as though their opinions have been changed is seen as realizable. Especially if they it only need to convince five out of nine Ivy Leaguers on the U.S. Supreme Court rather than the whole electorate.

The gay marriage advocates are not interested in States Rights. Quite the opposite. They know full well that having the term "marriage" redefined within some states will require, sooner not later, that the U.S. Supreme Court-the same court that discovered the U.S. Constitution conferred special protection on homosexual sex-will have to become involved.

Make no mistake; these New States Righters know very well that if some states start giving out marriage licenses to homosexual couples, the U.S. Supreme Court will have to decide whether the Federal Government must honor those unions. And if the Federal Government has to recognize and honor those unions, it will make little sense to say that Washington D.C. thinks I'm married in Missouri, but Missouri or a company whose commerce extends at all beyond state lines doesn't have to.

The Need For a Constitutional Amendment

Which brings us finally to the movement to amend the U.S. Constitution to clarify the federal definition of marriage as that between one man and one woman. This is not motivated by busy-bodies trying to spoil homosexual fun wherever they find it. (Not primarily anyway.) It is a pre-emptive act, forced on the people by the actions of a few intemperate judges and public officials, a pre-emptive act to prevent the U.S. Supreme Court from using Article IV, section 1 of the Constitution to require the legitimization of homosexual marriage for all states.

It is not reasonable to say that this will not happen. As Justice Anthony Scalia said in his dissent in the Lawrence decision last year which made anti-sodomy laws in all states unconstitutional,

"…At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter'…Do not believe it.

"More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that 'persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do…

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct…and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring"… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"?

So, the U.S. Supreme Court has already established the necessary logic to strike down any distinction by the states or federal government between homosexual and heterosexual unions. It will, in the near future, become the onus of the states to prove that their reasons for not recognizing gay marriage are based on practicalities and not moral prerogatives.

The judiciary has already become overly politicized. Not since the years prior to the civil war has the appointment of judges has become such a cause for political struggle. Judicial nominees appearing before the Senate are unsubtly asked to audition for the role of "judge." Judicial restraint and temperament are not even addressed. Nominees are demanded to clarify exactly what they will and will not decide on key issues. Our political system of Checks and Balances presumes that the various branches-Executive, Judicial, and Legislative-will be jealous of their own powers - that, to the extent it can, the Legislative branch would never let the Judicial branch take to itself authority that ought to have been its own. The Constitutional founders never foresaw that parties in the legislatures would collude with political parties within the judicial branch to circumvent the need to pass laws. The theories of power on which our system was founded has been turned on its head. But however politicized the courts are now, we haven't seen anything like when the U.S. Supreme Court sticks its hand even further into the issue of homosexual legitimacy.

Maybe it is a good thing that the government be sexually blind in the matter of marriage (whether one marries the same sex, multiple times, or his cat), but if that is the intent of legislators, then the public should insist that they say so. Senators and congressmen should not be permitted to hide behind offenses against logic like "I'm against gay marriage, but also against a constitutional amendment to prevent it." The courts have taken from us that freedom of movement. The Lawrence decision has made it unfeasible to hope that states will be allowed to decide this matter individually. As things now stand, a vote against a constitutional amendment is a vote for gay marriage nationwide. For better or worse.

Copyright © 2004 by James Wynn


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