“those durned librul activist judges” aka, Gay Marriage and Judicial Review in Action

I wanted to talk about this during the Prop 8 fervor, but didn’t quite have the energy. With the recent ruling in Iowa going into effect, I thought this was a good time to bring it up again. My friend John already wrote an awesome note stating my feelings on the matter better than I could, so (with his permission) I am reposting it here.

This note is indeed largely inspired by the Prop 8 debate in California. I do not have any particular feelings about the measure, as I am not currently a resident of that state, but if I still lived there I would probably hold my nose and follow the counsel of the leaders of the Church of Jesus Christ of Latter Day Saints, despite my personal beliefs that the government shouldn’t have anything to do with marriage to begin with (marriage is fundamentally a religious institution, not a legal one, and the binding of the legal and religious aspects over the years has largely been, for lack of a better term, a marriage of convenience). I think there are good arguments and bad arguments, for and against the measure, and I’m not really interested in a discussion of the Prop 8 measure itself.

However, there is one statement that is repeatedly made by some (not all) advocates of the measure, which absolutely drives me up the wall. It goes something like this:

“The people of California already voted for a measure to ban same-sex marriage. It was those durned librul activist judges overturning the will of the people! How dare they! We live in a democracy! Durned librul activist judges!”

This statement shows, at the risk of sounding hyperbolic, an appalling lack of understanding of basic civics. First and foremost, the country is not and never has been a pure democracy, and the founding fathers had good reason to stay away from pure democracy. Our country is essentially a democratic republic: the original intent of the FF’s was that citizens would elect representatives (within the state and for the national house of representatives), state legislators would elect senators (this was changed by the 17th amendment) and electors would select the president. Obviously, citizens now have more direct say in who elected officials are now than as originally intended, but the basic idea is the same: direct democracy, with issues decided by the majority, is not the way the system works.

The question, then, is why the FF’s did not design our country as a democracy. One of the main reasons is that, for all of its many useful features, democracy has a fundamental weakness: the tyranny of the majority. The glib version is that democracy is two wolves and a sheep deciding what to have for dinner. In a democracy, the will of the many can overpower the rights of the few; this is great when you’re part of the many, but when you’re part of the few (like, say, Mormons), it’s not a great situation. In the early days of forming our system of government, (at least) two very significant tools were put in place to make sure the rights of the few would not be trampled by the will of the many. One of these was the bill of rights. The other was an independent judiciary.

The judicial system has many purposes, but one of the most important is to make sure that the laws passed by the legislature (or, in this case, passed through referendum by the citizenry) do not defy the rules set forth in the constitution (whether federal or state). Ideally, the rulings made by the judiciary should be independent of all factors external to the rules set forth in the constitution; as necessary, the list of factors ignored can even include societal traditions. In other words, “We’ve always done it this way, even if it’s not technically constitutional, so this law is ok” is not a universally accepted rationale for saying a law is constitutional (the extent to which it should come into play is certainly open for debate, and I don’t want to say tradition should be completely ignored. I definitely wouldn’t want to say it should be the primary rubric, though). In the case of the referendum whose overturn has prompted Prop 8, I would even go so far as to say (this is my opinion, and is certainly open for debate) that it would have been far more activist to uphold the law than to overturn it, if it was determined that the law did not in fact meet the standards of the CA constitution (and I agree with the court’s ruling that, as the CA constitution is presently written, the referendum did not pass muster; note that I’m fine with those who can argue that the law was indeed constitutional, and should have been preserved. My issue is with those who would suggest it should have been left alone even if it was unconstitutional, and believe me, I’ve seen that argument plenty in my travels on the intertubes).

Of course, it’s not reasonable to completely ignore the will of the majority concerning a given issue if there is a significant enough majority to suggest that a law should be passed despite its current unconstitutionality. It is for this reason that the FF’s (and by extension those who crafted state constitutions) provided a mechanism to amend the constitution. Amendments on the national level require an extremely high threshold of popularity to pass (and as an aside, this threshold is why a federal “Defense of Marriage” amendment will never ever get passed; do you really think there aren’t 13 states that would vote it down?), states often less so, but the idea is the same: change the constitution (whether through amendment or through constitutional conventions) if you want, but only if you REALLY want it and mean it.

My overall point is this: whether you support or oppose Prop 8, understand that issues of this nature (where there’s a sufficient legitimate argument that they are unconstitutional despite popular sentiment) were intended to be handled through the amendment process. The existence of a referendum to amend the state constitution on this matter is exactly what the founding fathers would have wanted (whether it should be PASSED or not is a totally separate issue, and one I’m not interested in having discussed here). And please, PLEASE drop the rhetoric of “activist judges” opposing the will of the people: in essence, the judiciary is not meant to rule for or against the current will of the majority, but instead rule completely apart from the current will of the people. Yes, there may be cases where a judge will deliberately misread the relevant constitution in order to overturn an actually constitutional law, but such situations are relatively rare and likely to be remedied by a higher level court when they do occur. Nonsensical ideas such as calling for the removal of judges whose rulings don’t agree with a large group of people are, in essence, anathema to our system of government ([of course], this comment is only applicable to removing appointed judges, those not elected by the people. I have no problem with people voting out judges in a normal election process when they come up for re-election).

[NOTE: This thread is about our country’s judicial and legal processes, how they relate to gay marriage, the role of judges, and any number of other things. Whether prop 8 is wrong or right has been discussed many times, and I don’t want to repeat it here. Unless you’re tying it into the original post, take it somewhere else.]


  1. Great post. I think there was another uncomfortable reason why a straight democracy was not designed by our Founding Fathers: the ignorance of the majority. Even with the relatively tight strictures on who could vote in the beginning, a large chunk of the voting populace was downright ignorant. Even now (and I might even suggest especially now) with the media, most of us can’t be bothered and/or don’t have the tools to really know the people we vote for. The best we can do is vote based on past voting practices and facts fed to us by others with their own agendas.

    It is not a comfortable thing to see one’s own ignorance, but I think it is important to recognize that even some of the most informed of us are largely voting ignorantly, with little idea of the effects of our votes on other aspects of government.

  2. I read a piece today that discussed that the only true conservative on the supreme court was Souter. He was the only one who showed much respect to previous decisions. Given the definition of conservatives are resistant to change that makes him the most conservative.

    I see the tone that most of the prop 8 debate generated on both sides as very bad sign for our country. It is a good thing we already have a constitution because if we had to come up with it today we would look very much like the middle east. We have gotten to the point that compromise is evil. Just listen to the tyrants like Hannity and Limbaugh or most of the Hollywood activists like Clooney and many of the Gay activists.

    Just read #4 to see an opinion that even if you do agree with much of what Jon says I can’t see him accept any form of Gay marriage under any circumstance. No compromise leads to civil wars or turmoil. Just look at what happened in California in November.

  3. And please, PLEASE drop the rhetoric of “activist judges” opposing the will of the people: in essence, the judiciary is not meant to rule for or against the current will of the majority, but instead rule completely apart from the current will of the people.

    The real divide is between stare decisis judges and correction oriented judges.

    The biggest problem with making “corrections” is that it leads to those on the “wrong” side believing that the social covenant has been breached — that a change has occurred without the accepted process for change being engaged in.

    As a lawyer in Texas I’ve seen a lot of that (going both ways) in the courts. Corrections … never ending in this state, going both ways.

    But yes, an activist judge is one who changes the law, generally to fit the “will of the popular” people rather than the will of the people who want things to say the same.

    If there were an inevitable force of history, that might make some sense. But social trends ebb and flow.

    The rhetoric is fair many times, unless you are opposed to the will of the unpopular, unwashed majority and in favor of either the force of history or the necessary corrections (which is what the changes are called when they go back the other way).

    On the other hand, using it just as a label for someone you disagree with is silly.

    Bottom line: in the gay marriage context, judges who are going against stare decisis to create change are doing it, generally, citing the evidence of the will of the people in related measures (e.g. using civil unions as a reason to prove that gay marriage is appropriate) to overturn the general will of the people in order to create a better world now, rather than wait for the people to catch up.

    Should they? Well, if the people’s will really is flouted, then you just impeach judges (cf California and the death penalty). Otherwise the will of the people obviously wasn’t that strong. If your judges are all appointed rather than elected, then real impeachment (rather than just voting them out the next election) is your only choice, and I would disagree with saying it is wrong.

    The fact that it doesn’t happen reflects, I think, that the will of the people against whatever the judge did wasn’t as strong as some might think.


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