COMMENTARY: Marriage Rights and the Myth of Activist Judges

by Linda Holmes, J.D.

June 18, 2008

Yesterday was the first day same-sex couples were able to marry in California. The California Supreme Court gay marriage case that granted that right — the undramatically named In Re Marriage Cases — has started, or restarted, debates about privacy, family and civil rights. But it also has started another round of discussion about “activist judges.”

In the case, the Court concluded that California’s law granting most of the same legal rights to same-sex partnerships as heterosexual partnerships but labeling heterosexual pairings “marriages” and same-sex unions “domestic partnerships” violated the state constitution for two reasons: The law deprived gays and lesbians of the fundamental right to marry that was established in many other cases, and it discriminated against them based on sexual orientation in violation of the state equal-protection clause.

A visit to ProtectMarriage.com, operated by supporters of an upcoming ballot initiative to amend the California constitution to ban gay marriage and undo the effect of the court decision, shows that the amendment is being promoted as a defense against a court acting illegitimately, more than as a substantively good idea. What is stressed is that the court has done something undemocratic — four judges versus the will of the people.

The catch is that whether a court has the legitimate authority to overturn legislation is the one basis on which the Court can’t be faulted. What constitutes a suspect class, what constitutes a compelling interest, the boundaries of the fundamental right to marry — these are open questions. But whether a court acts audaciously or outside its authority by overturning legislation that was democratically enacted was resolved more than 200 years ago.

Judicial review is rarely re-argued directly, but it did in fact take a U.S. Supreme Court case to establish it. Back in 1803, in Marbury v. Madison, Chief Justice Marshall wrote:

If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Not to ruin the suspense, but Marshall concluded that any conflict has to be decided in conformity with the constitution — “disregarding the law.”

It’s precisely the principle that ProtectMarriage.com derides: The Court — here, the four justices who make up the majority of the court — not only may but must decide a case “conformably to the constitution, disregarding the law” where it finds a conflict exists. And the Court has a duty to decide when a conflict exists. Four judges versus the will of the people. And while the California decision rests on the state constitution rather than the federal, the idea that a court can legitimately invalidate an enacted law is no less applicable.

Judicial review not only is legitimate but also has a history of decisions that made people angry at the time but now seem utterly obvious. It was barely 40 years ago that a group of judges threw out a Virginia statute making interracial marriage punishable with jail time. Judges have thrown out laws that segregated schools, outlawed contraceptives and allowed 19-year-old women but not 19-year-old men to drink low-alcohol beer. Legal recognition of same-sex marriages is a new development in the U.S., but allowing judges to overturn laws they find unconstitutional, no matter how popular they are with “the people,” isn’t.

In fact, the Court anticipated this objection in the ruling and quoted Justice Jackson in the U.S. Supreme Court opinion in West Virginia State Board of Education v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The most surprising thing about the California ruling is just how non-groundbreaking it is. It doesn’t set out a new test or a novel standard like the trimester analysis in Roe v. Wade or the privacy right developed in Griswold v. Connecticut. Here, the court asks the same questions that have guided discrimination cases for decades.

It’s an issue that can’t be resolved based on who’s a rogue and who’s not. It has little to do with what power is rightfully vested in courts versus “the people.” Judicial review of legislation is legitimate; constitutional amendment by ballot initiative also is legitimate. The issue for the initiative isn’t whether the province of democracy was invaded by judges any more than it is whether the province of the court is being invaded by the initiative process.

The issue for the ballot initiative is its substantive merits: whether denying two people of the same sex who love each other the right to be married to each other is fair, right, constructive and critical enough to enshrine in the constitution.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.