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Marriage, the president, and judicial activism

By Erik Wilkins-McKee

Posted November 17, 2006

I am so sick of activist judges, it makes my head spin. Consider the latest attempt to “rewrite the will of the people” by a small group of unelected individuals collectively referred to as the New Jersey Supreme Court.

As Pres. George W. Bush said at a Nov. 6 campaign rally in Georgia, “For decades, activist judges have tried to redefine America by court order. Just this last week in New Jersey, another activist court issued a ruling that raises doubt about the institution of marriage. We believe marriage is a union between a man and a woman, and should be defended.”

Associated Press reporter Jennifer Loven wrote of the president’s statement that “in this conservative rural corner of eastern Georgia, even children jumped to their feet alongside their parents to cheer and clap for nearly 30 seconds — a near-eternity in political speechmaking.” It warms the heart to know that some people in this country agree that activist judges make bad decisions. I doubt, however, that they would share my view of the problem.

Two issues are at stake in the gay marriage debate. One, and perhaps the more important, is the role that the judiciary plays in protecting minority rights. Second is government interference in the institution of marriage. Let’s take the second first. Marriage, the president claims, has historically been a union of a man and a woman. Some people limit that to one man and one woman, but of course that’s wrong without further qualification.

So let’s instead ask the president to say “the actual act of getting married unites one man and one woman at a time,” while recognizing that this doesn’t always prove to be the case, as in polygamy in some areas of the country, and fraud perpetrated by one or other of the parties, already married. Further, “unites” is limited by the following: divorce, repeatable as often as felt necessary; common law marriage, where the state decides you’ve lived together long enough to have joint rights; loveless but formally continuing marriages; and, arranged marriages, in which two families are united, rather than simply two “individuals.” Is it so hard to see why Bush has trouble with unpredictable consequences?

But the real problem here isn’t the many variations that arise under law. The real problem is that “marriage” has, in the West, been traditionally a religious union. The First Amendment, as now construed, prohibits government establishment of religion (i.e., official government support of religion) and government interference with the free exercise of religion. If marriage is a religious union, then government shouldn’t interfere with it. At all.

If we lived in a free country based on classical liberal ideals (which wouldn’t be all good), then every religious community would decide whom to unite with each other, and the conditions under which such unions would be acceptable and take place. Some Protestant sects are thinking about these things now. But the flip side of this is not on the radar. Government should not be involved with such definitions. If we want our government to promote “marriage,” too bad, I say. Government should feel free to recognize the rights of two (or even more) consenting adults to give each other certain tax benefits, visitation rights, etc., upon the filing of an affidavit with the local government, and should terminate those agreements upon application by one or more of the parties involved. If those parties happen to be made up of folks married within their religious community, or by their families, or what have you, the importance of that essentially private bond is their own business; granting legal rights to another person in your life is quite another matter. Up with civil contracts for everyone.

The problem with so-called activist judges, in the case of gay marriage, then, is that they never go far enough and strike down all government recognition of marriage, to insist that it be replaced for public purposes by civil contracts between consenting adults.

As for judicial activism generally, the president’s attack on it is just plain scary. During the past four decades, so-called activist judges have insisted that each person should have a vote, that criminals should know their rights upon arrest and be provided with an attorney, that individuals facing the death penalty should be sentenced under a fair process, that discrimination is illegal, that men and women should be given equal opportunities, and on and on.

If the president wants to attack judicial activism, he should notice that it goes both ways, since it will take opposite-minded activist judges to reverse the rulings of the past 50 years that have become settled law. This means, as any rational person would admit, that every judge is an activist judge: They all look at the law and, in constitutional matters, make decisions within the framework of legal tradition and the expectations of their profession.

It’s shameful to attack liberal decisions for being the work of activists, while conservative decisions are lauded as in line with the “real” meaning of the law. Stop pandering to our prejudices, Mr. President.

Erik Wilkins-McKee is a political theorist who lives and writes in Putney.