Tuesday, October 14, 2008

"Activist Judges" Again

Yesterday, I provided a recap of the Connecticut marriage ruling. Today, I want to write about the expected knee-jerk Activist Judge (tm) backlash from the marriage defense crowd.

You see, before anyone even had a chance to read the entire Connecticut court's 85-page opinion, rightwing news[sic]sources began lambasting the high court's activist "imposition" of same-sex marriage on the state. The court's reasoning didn't matter, of course. These articles so rarely discuss a court's articulation of equal protection and due process principles. Apparently, legal principles don't matter. What matters is that oh dear god a court "has overruled the will of the people and taken it upon itself to legalize homosexual 'marriage.' [sic]" It is unfortunate that so many Americans seem to oppose marriage equality, not because they understand the legal principles involved, but because they don't want "elite activist" judges "imposing" something on them against their will.

Matt Barber, former Policy Director at Concerned Women for America and current director at Liberty Counsel, immediately reacted to the ruling:

"[It] is only inevitable in the minds of judicial activists who are hell-bent on imposing -- through judicial fiat -- their own skewed ideology on 'we the people'....[O]nce again we have a court full of judicial activists circumventing the will of the people and circumventing the constitutional process in order to manufacture a so-called 'right' to homosexual marriage...."

Notice how the objection is not based on the Court's reasoning. It is based on the fact that judges are "hell-bent," not on upholding constitutional principles, but on Imposing Their Will on The People (tm)! Yet, all of this hyperbole about judicial activism is a basic, faulty appeal to the masses: A whole buncha people are against same-sex marriage therefore it's wrong of judges to validate same-sex marriage.

If marriage defenders object to the court's reasoning, that's one thing. But Barber is not objecting to the court's arguments per se, he's objecting to the fact that our legal system allows for judicial review of legislative actions. For once I'd like these "marriage defenders" who only come out of the woodwork to critique the activism of judges who make decisions they disagree with, to acknowledge that inconvenient truth. In reality, I suspect that it is not judicial review that Matt Barber takes issue with. Rather, he objects to its use in certain cases. Namely, the ones he disagrees with.

Throughout our nation's history, the Activist Judge (tm) cry has been commonplace.

I have written before of an interesting parallel to the same-sex marriage issue. "Marriage defenders" loathe any analogies comparing gay people to people of color but it's worth remembering that the Brown v. Board decision created a severe backlash to integration whereby segregationists strongly denounced the "activist" Brown justices. One Senator from Mississippi, for instance, called the "activist" decision "illegal, immoral, dishonest, and a disgrace" while another called it "a monumental fraud which is shocking, outrageous and reprehensible." In one of the greatest statements undermining judicial review, a Governor said "no true Southerner feels morally obliged to recognize the legality of this act of tyranny." If these guys had it their way the Supreme Court would have rubber-stamped majority opinion and school integration would not have occurred until majorities of the people came around, stopped being bigots, and agreed to integrate schools.

Unfortunately, people still believe that the civil rights of the citizenry should be up for popular vote. Masses of people still mistakenly believe that their own rights have been trampled if they do not get to deny other people civil rights.

The marriage defender's opposition to "judicial fiat" and "judicial tyranny" overturning the will of the people is just as applicable to the Brown v. Board decision as it is to the Connecticut marriage decision. Intellectual honesty and consistency requires that if one is going to object to the use of judicial review in one case, one must object to it in all cases. Otherwise, one's moaning regarding "judicial tyranny" is nothing more than transparent demagoguery for purposes of riling up the masses.

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