Barry Eisler

Saturday, October 28, 2006

Activist Courts...?

Lots of discussion about whether the recent New Jersey Supreme Court decision on gay marriage was activist or not. President Bush and the Wall Street Journal cry activism; the New York Times and Andrew Sullivan say nay. One writer at Slate says activism; another says no. Virginia senator George Allen, who seems to be against sex in novels, says activism.

Who's right? It depends on how you look at it.

When a court interprets a constitution (in the New Jersey case, its own, state constitution), it might come to a conclusion that a majority of citizens don't support. If you don't think courts should contravene public opinion (an odd view, given that the constitutions courts are bound to interpret protect minority rights), courts that do will seem activist. If you focus instead on whatever constitutional language the court is trying to interpret, and find the court's interpretation compelled by logic, you won't see activism at all.

The US Supreme Court's landmark 1954 decision, Brown v. Board of Education, is instructive. In finding "separate but equal" violative of the 14th Amendment's equal protection clause, the court moved more quickly than public opinion (particularly in the south) might have been ready for, and certainly more quickly than Congress. By this standard, the Brown decision was activist. Was it, I ask opponents of gay marriage, therefore wrong?

If Brown was not wrongly decided -- if you support the Brown decision -- and you oppose gay marriage, you have to find a way to distinguish Brown's application of the equal protection clause with regard to blacks and education from its application to gays and marriage. I don't think such a distinction exists -- but if anyone can offer one, I'm listening.

Because I can't find that distinction, I support gay marriage. I'll go further: I disagree with those conservatives (such as the editorial board of the Wall Street Journal) who argue that gay marriage is a question best left to the states. If you believe gay marriage should be best left to the states, you must also believe that separate but equal education should have been left to the states -- that is, that Brown was wrongly decided, and that separate but equal was, and remains, right.

There are arguments for going slowly on this issue (as the New Jersey court seemed to recognize, in leaving to the legislature the question of whether gay unions ought to be called marriage): respect for anti- gay marriage sentiment, no matter how wrongheaded; fear of a legislative or other backlash. But those arguments are based on tactics, not on the requirements of constitutional law.

Strange, that when a court ignores public opinion and focuses on the constitution itself, it gets tarred as activist. If that's activism, what are we going to call courts that bow to public opinion by finding a way to deny equal protection to gays?

Ah, I know. We can call them... reactionary.
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Anonymous Ruth said...

My comment really has nothing to do with the NJ decision, but more to do with another attack on the South as the icon of racism. Does everyone forget that northern and other cities across our nation had integration forced on them a decade or so later than the south and bucked just as hard as the infamous southerners? I don't disagree with Brown vs BOE but not all racists live in the south despite momumental court decisions made there.

Saturday, October 28, 2006 5:09:00 PM  
Anonymous Hank Shiffman said...


The distinction between race and sexual preference is that some people still insist that the latter is a matter of choice. They might argue that you're born to your race and you can't change it, but homosexuals can be cured. If they can be cured, then they can be punished for being or acting in an unacceptable way.

I spent an uncomfortable couple of hours on a recent flight with just such a believer. I can't doubt his sincerity, even though I believe with every fiber of my being that he's wrong. But I think that's how somebody can see the two ideas as different, and deserving of different legal treatment. Or maybe we've all come to accept that racism (or at least public racism) is either wrong or unacceptable. We won't admit we're racist, while being anti-gay is still acceptable in too much of the country.

Saturday, October 28, 2006 5:41:00 PM  
Blogger Watch 'n Wait said...

Well said. Just a shame that people can't get that through their heads. Or perhaps it's that they don't care to do so. The struggle will go on, and well it should.

Saturday, October 28, 2006 9:38:00 PM  
Anonymous Rae said...

Very interesting post, Barry. The word that's come to my mind to describe the courts these days is neither activist nor reactionary, but politicized.

I was having a conversation about the judicial branch recently with a friend who's a judge. He's becoming alarmed by the efforts of some political groups to push legislation across the country that would begin to remove the judicial branch's 'separateness' and leave it under the control of the legislative branch, at least at the state level. He's a thoughtful guy with no particular political axe to grind, so I took his comments pretty seriously. While it's true, of course, that many judges are elected to their posts, it's kind of scary to think that the judicial branch could be in danger of losing its independence from the politicians.

Sunday, October 29, 2006 11:41:00 AM  
Anonymous spyscribbler said...


Sounds like Senator Allen took a page from Fred Head's smear campaign against Susan Combs. Kismet Romance maybe has as much sex as your books!

Sunday, October 29, 2006 3:48:00 PM  
Blogger JD Rhoades said...

I've gradually come to the conclusion that the government needs to be out of the marriage business altogether. There should be a "civil union" recognized by the State for inheritance, benefit, and property ownership purposes (and available to all), and "marriage" should be a purely religious function which a church would be free to recognize or not as it sees fit. It's become clear that "marriage" has become a primarily religious question and the State should just keep its mitts off.

Any time the State gets entangled in religious questions, it just doesn't end well.

Sunday, October 29, 2006 6:58:00 PM  
Anonymous Anonymous said...

Who's right never depends on how you look at it.

Monday, October 30, 2006 9:18:00 AM  
Blogger Brett Battles said...

Well said, Barry. Tying the issue to Brown is an excellent example. The court, as you state, is doing exactly what it was set up to do: protect the rights of minorities.

It's hard, though, for me to look at this issue without some emotional involvement. My own brother is gay and has been in a monogamous relationship for at least fifteen years (I think longer, actually.) His relationship has lasted twice as long already as my own marriage did. I point that out not to draw attention to my own short comings (which I'll readily admit to), but to the fact that the argument that gay marriages are unstable and disrupt the constitution of marriage do not hold true in our cases.

I have never understood why this is an issue. Why some people think it is a threat to their own lives. Maybe these were the same people who thought educating African American children in the same school as white children was an affront to God. I will never understand this way of thinking.

Just my unbiased opinion.

Monday, October 30, 2006 4:42:00 PM  
Blogger David Terrenoire said...

I see it as a civil rights issue too. I feel the same way about gay adoption. Equal protection under the law doesn't have an asterisk that means everyone but homosexuals.

And the argument that it will destroy marriage doesn't carry much weight with me either. I've been married for 26 years and if Bill Clinton and Newt Gingrich didn't exfoliate our connubial bower, I think it's safe from two guys in Boston opting to share a mortgage.

I'm a bit less enthusiastic about military service, but agree with Barry Goldwater that you don't have to be straight to shoot straight. I'd be less in favor of this if all the arguments I hear against gays in the military sound exactly like the arguments used to keep the military segregated.

Tuesday, October 31, 2006 7:20:00 AM  
Blogger JR said...

"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." That is the relevant portion of the 14th Amendment. Thus, if this is truly an equal protection issue, then the fact that it is "left up to the states" would be irrelevant, since the states can't make a law that denies liberty without due process or denies equal protection. Marriage is, however a state mandated institution. Under state law it has a lot of attributes of a contract and the State determines what benefits flow from it, how it can be entered into, how it can be dissolved and what consequences flow from dissolution. Remember that even priests can't marry you without saying those words we have all heard many times "by the power vested in me by the State of Whatever, I hereby pronounce you husband and wife." It is incorrect to say that it is not a State Matter, the only question is what are the limitations placed on the State in administering their power. The denial of the liberty to marry and be vested in all of the rights and obligations that entails seems to be a strong argument against those who would say it is not a constitutional issue as could the failure to afford people with the equal protection of laws that give rise to those rights and obligations. The idea that Marriage is sacred and sanctioned by God and therefore (depending on your beliefs) can only be between a man and a woman, may be correct for a church, but that has nothing to do with what the state can or can not do with its marriage laws. Because of that, I have continuously failed to understand what the great issue is for those who oppose gay marriage. No one is forcing a Catholic Priest to marry a gay couple. The only thing that allowing gay marriage does is afford gay couples all the rights and obligations of a married couple under State law. Why not? What does that have to do with the "sanctity" of marriage one way or another. Many Churches will not recognize such a marriage. As a Church matter that is fine. As a state matter it makes no sense.

Tuesday, October 31, 2006 4:48:00 PM  
Blogger Barry said...

Sorry for the delay in getting these comments up, everyone; I haven't been getting my usual email alerts about new comments, and am looking into why.

Hank, as usual, you go right to the heart of the matter... you're right, I forget that there are people out there who think homosexuality is a choice. The argument is bizarre to me on so many levels: if heterosexuality is innate, why would homosexuality be learned? Given the discrimination and hostility gays have faced throughout history, why would someone volunteer to be gay? And just how can you un-learn something as powerful as your sexual orientation? It would seem about as easy as unlearning left or righthandedness, not something we would expect to see in a significant percentage of populations throughout history and cultures. In addition to the commonsensical, I try to extrapolate from my own experience: I figure that crazy, powerful urge triggered by the sight of an attractive female that started when my I became a teenager is the same thing a gay man feels when he sees an attractive male. Seems a reasonable supposition to me. Finally, the gays I know all say they were born gay. I have no reason to doubt their first person accounts, and plenty of reasons to doubt arguments to the contrary.

But yes, if you believe that homosexuality is a reversible choice, you'd have some basis for arguing that different treatment of gays is less invidious than different treatment of blacks. Although you'd still be left with the strange argument of why letting two men in love or two women in love marry each other would be a threat to the institution generally... as I think Daniel Patrick Moynihan said with typically brilliant common sense: gay marraige doesn't threaten marriage. Divorce threatens marriage.

JD, I think you made that point on the distinction between government-sanctioned civil union and religion-sanctioned marriage before, and I think it's right on the money. Interesting question there about the value of the word marriage... I'm going to ponder that, and maybe right more about it in my next post. Thanks.

JR, good points. The EPC doesn't require states to provide precisely equal treatment; only equal treatment where it counts. Where that is, of course, is always the question.

Wednesday, November 01, 2006 11:36:00 AM  

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