The Massachusetts gay marriage decision is an interesting point. Of
course, homophobes and the religious right screamed "judicial activism"
to make the welkin ring, but where exactly was the activism?
The question before the court was whether the state could, consistent
with the State constitution, deny the rights, protections and
obligations of marriage to individuals based solely on the gender of
their intended spouses. The court found that they could not. This ruling
did not create a new class of persons or a new right, any more than the
14th and 19th amendments created a new class of persons or a new right.
The court fully acknowledged legislatures right to enact laws, etc, but
found that a ban on same-sex marriage was in conflict with the State
Constitution, and they acted as they are required to act in such a
circumstance, striking that law down.
From an unofficial transcript of the ruling- found here-
http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html
In ruling that the Commonwealth could not do so, the court observed
that the Massachusetts Constitution "affirms the dignity and
equality of all individuals," and "forbids the creation of
second-class citizens." It reaches its conclusion, the court said,
giving "full deference to the arguments made by the Commonwealth."
The Commonwealth, the court ruled, "has failed to identify any
constitutionality adequate reason for denying civil marriage to
same-sex couples."
The court affirmed that it owes "great deference to the Legislature
to decide social and policy issues." Where, as here, the
constitutionality of a law is challenged, it is the "traditional and
settled role" of courts to decide the constitutional question. The
"marriage ban" the court held, "works a deep and scarring hardship"
on same-sex families "for no rational reason." It prevents children
of same-sex couples "from enjoying the immeasurable advantages that
flow from the assurance of 'a stable family structure in which
children will be reared, educated, and socialized."' "It cannot be
rational under our laws," the court held, "to penalize children by
depriving them of State benefits" because of their parents' sexual
orientation.
The court rejected the Commonwealth's claim that the primary purpose of
marriage was procreation. Rather, the history of the marriage laws in
the Commonwealth demonstrates that "it is the exclusive and permanent
commitment of the marriage partners to one another, not the begetting of
children, that is the sine qua non of marriage." As a man who is happily
married without children, I agree with this aspect of their decision,
and resent the assertions of the religious right that the primary
purpose of marriage is procreation. The primary purpose of marriage is
the mutual commitment to someone whom you love and with whom you wish to
spend the rest of your life.
AFAIK, there was nothing either in the Massachusetts constitution
defining marriage, nor had the legislature passed a legal definition of
marriage into law. In the absence of such, the Massachusetts Supreme
Court found, quite reasonably, I think, that marriage is "the voluntary
union of two persons as spouses, to the exclusion of all others." Based
on this definition, they further found that the State's depriving an
individual of the right to marry based solely on the gender of their
intended spouse constituted a failure of equal protection under the law.
Quoting their decision once more, " "the right to marry means little if
it does not include the right to marry the person of one's choice,
subject to appropriate government restrictions in the interests of
public health, safety, and welfare."
While those who cry "judicial activism" protest this decision, they are,
from what I can see, unable to establish that the court did anything but
more clearly define a term which had been quite ill-defined under state
law, and in so doing, ended an unconstitutional practice of
discrimination. They accused the court of "changing" the definition of
marriage under state law, but when pressed to identify such a definition
in state code, simply claimed that it was "self-evident" or (better yet
from a constitutional vantage) "God's law." Even if the legislature
had defined marriage as strictly the union between a man and a woman, I
hold that such a position is unconstitutional and was rightly struck
down, just as a legislated definition of "voter" as a caucasian male
would be justly stricken down.
Joseph Sinclair wrote:
>>Actually, "activist judge" is quite specific, and it has nothing to do with agreement of disagreement. It refers to a judge who substitutes judicial WILL for judicial JUDGMENT.
>
>The early concern about this is brought out most clearly in the "Federalist Papers" No. 78, May 28, 1788 (attributed to Alexander Hamilton), Paragraph 16. The point made there is that a judge may adjudicate between 2 conflicting laws of equal authority, or between 2 conflicting authorities, but must NEVER make a determination of the will, rights, or character of the people.
>
>The legislative expression of the will of the people is the only acceptable government expression thereof, and must never be abrogated by the judiciary. The judiciary has no jurisdiction to declare "rights" nor to prevent government infringement on the same. The judiciary, legitimately, may only DECIDE points of law.
>
>The broadcast flag decision was a determination that Congress had not granted the requisite authority to the FCC to enforce their ruling (the FCC doesn't make laws, only Congress does that, they make rules that are enforced by Congressionally granted authority). The Massachusetts SJC ruling on "gay marriage" declared a new "right", created a new "class" of persons, and directed the legislature how to implement their "decision". I make no comment, here, on the question of "gay rights", but the actions of that court were unequivocally beyond their granted authority, and as such represent the worst attributes of "activist judges".
>
>Other excellent commentaries on this topic include the recent dissenting opinions written by Justice Scalia in "Lawrence v. Texas", No. 02-102 and "Roper v. Simmons", No. 03-633.
>Justice Scalia's CSPAN speech is transcribed at (http://www.cfif.org/htdocs/legal_issues/legal_updates/us_supreme_court/scalia-constitutional-speech.htm), this is an excellent elucidation of the proper role of the judiciary
>There is a Q&A about judicial activism at (http://www.family.org/cforum/fosi/government/courts/supreme/a0036199.cfm)
>
>==Joseph++
>
>Patrick Fleming, EA wrote:
>
>
>>Erik Bixby wrote:
>>
>>
>>
>>>>The term activist judges is generally used
>>>>derogatorily applied when one disagrees with their decision. I fail
>>>>to see how striking down the broadcast flag is A Bad Thing for Linux
>>>>or F/OSS in general. At any rate, I suppose I've rambled enough...
>>>>
>>>>
>>Except the very concept of "activist judges" is those that don't toe the
>> government's line.
>>"Activist judges" have said the the government can't infringe on the
>>peoples' rights to marry someone of the same sex, the government can't
>>infringe on the ability to record a broadcast show. No one uses the term
>>"activist judges" when they support the government's attempts to reduce
>>our freedoms only when they tell the government it can't infringe more
>>than it has.
>>My $.02.
>>
>>
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--
Lee Einer
Dos Manos Jewelry
http://www.dosmanosjewelry.com
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