On Judicial Activism

The right claims that the 'Activist' court in Mass is somehow legislating from the bench, or creating outcome-oriented decisions, which is nonsense.

What do they mean, though, when they make that 'activist' claim. Are they suggesting that the seven members snuck over to the state house and beat up the legislature until they passed a law recognizing gay marriage? THAT would be judicial activism. But no, that's not what happened. So why 'activist'?

Argument 1: It's not the court's place to re-define marriage.

This is the favorite because, on the surface, it's true. The court has no place legislating marriage. Of course, that's not what happened. Marriage was already defined in Mass, and the court did not change that definition. It did change how the law is implemented - but almost any court decision has the potential to do that. In fact, once again, that is the role of the court. Let me say again, the legal definition of marriage, in Mass, did not change.

The Mass judges addressed this issue in Goodridge

The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature, see, e.g., post at (Cordy, J., dissenting), is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues.

Argument 2: The courts ignore the history of the laws.

This has two problems. First of all, if history (IE 'Tradition') were, of itself, enough to support a law, laws would never be changed. Slaves would still be slaves, the Miranda rights would never exist, ect, ect.

Secondly, most cases I've read (including the Mass decision, as well as Lawrence), they spent considerable time looking at the history of the laws and the role within the society. In Mass, they used case law from the colonial times, to talk about the role the Mass Constitution has in protecting the rights of the citizens. Here's some excerpts from the slip decision:

The larger question is whether, as the department claims, government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question....

... We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460-466 (1879) (noting that "[i]n Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth," and surveying marriage statutes from 1639 through 1834). No religious ceremony has ever been required to validate a Massachusetts marriage. Id.

Argument 3: The court created rights which don't exist.

This was more of an argument under Lawrence, then Goodridge, because the courts suggested there was a right to 'privacy', which people argues do not exist. This argument, however, contradicts the second one, as this right to 'privacy' evolved over many years, through court challenges. Anytime the state tried to over-reach it's ability to pry into people's lives, a court challenge ensued. And, piece by piece, a generally accepted concept of privacy within the home was built on each of these cases.

Here's what the court said in Lawrence

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

In Griswold the Court invalidated a state law prohibit-ing the use of drugs or devices of contraception and coun-seling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights

Now, you may disagree with the reasoning, but you can't dismiss it. Judicial Activism suggessts that the courts are acting without regard to their role, and the law.

That's just not true.