Going Mental: "Activist" Judges and the Gay Marriage Debate - As of late, I have been participating in an interesting debate on another blog's comment board. The subject, essentially, is the judiciary's role in the gay marriage debate - and whether judges that rule in favor of gay marriage rights and clearly against majority public will are nothing more than "activist" judges who are "legislating from the bench." I have some thoughts on this subject that I'd like to post here for your perusal and comments.

First, let me start with an observation: conservatives tend to incautiously and incorrectly throw out the term "activist judges" when the judicial system works against what conservatives would like to see decided.

I think popular will does have an important role to play in the process of establishing legal norms that guide our society. This is most clearly reflected in the electoral process through which popular vote determines legislatures and executives. But this does not apply to the judiciary, at least not completely. In our system judges are nominated by the executive and confirmed by the legislature. This is where the "public's" role over the judiciary ends, and for good reason. Once on the bench, such judges ideally function independently of either other branch of government so as to be as impartial as possible arbiters of the law. Sure, judges come in with preconceived bias, but the pressure to "decide" cases more subjectively based on political (as opposed to legal/constitutional) considerations would be much greater if judges were always subject to popular sanction once on the bench.

Furthermore, I make the point again: judges are not on the bench to cater to majority public will. In fact, judges are essentially on the bench for precisely the opposite reason: to protect constitutional rights of individuals against the tyranny of the majority when necessary. Sometimes majority public will is in accord with protecting the constitutional rights of individuals. In such instances, judicial decisions are rarely controversial. But, sometimes majority public will is at odds with the constitutional rights of individuals. And it is during such moments when judges have to be "unpopular." And, thank God, our political system allows them to be "unpopular" without recrimination. The movie "Amistad" comes to mind.

I think the most important issue here in the question of gay marriage is that our disagreement is not with "activist" judges who "legislate from the bench" -- but rather with our individual understanding of marriage in the context of basic, fundamental, inalienable human and civil rights. Some of us (and I would count Andrew Sullivan among this group) see the legal and moral issue of marriage as a critical component of civil liberty and human rights ... to life, liberty, and the pursuit of happiness. Others don't see it this way, but instead tend to consider marriage (and even the state-protected legal benefits that come with marriage) as a privilege and not a basic, fundamental civil right. And thus the privilege of marriage can be restricted to certain types of relationships (i.e. heterosexual and monogamous and non-incestual) without the question of discrimination against one's human rights ever being at issue.

All that said, the point is that the courts aren't "legislating" marriage from the bench. They are interpreting the constitutionality of the restriction that limits marriage to heterosexuals. Perhaps this will open the door to the other restrictions on marriage (i.e. that they be monogamous and non-incestual). But that is altogether another issue. [As an aside: I see polygamy and incest as questions of choice, whereas I see homosexuality as not a question of choice but as an integral and unalterable part of one's identity as a human being -- a distinction I think the courts will draw as well when it comes to considering incestuous or polygamous marriage as an issue of constitutional and civil rights.] Judges and the courts will deal with this if and when it arises. But rest assured that the same deliberative process will be at work, with judges determining the constitutionality of such restrictions.

Finally, I reiterate: judges that rule in favor of gay marriage are not forcing gay marriage on anybody. Nobody is being forced to reconsider their marriages. And our children who will marry in the future will not be forced to marry anyone they don't love and aren't willing to make such a commitment to. In fact, personally, I see extending marriage to monogamous, non-incestual, homosexuals as strenghtening the institution of marriage, not weakening it. Because I see it this way, I wonder how can anyone who is pro-marriage be against this?