Nexus: Chapman's Journal of Law and Public Policy

When the California Supreme Court struck down the state's ban on same-sex marriage last May in a 4-3 vote in In re Marriage Cases, as we all know, the decision sparked much debate across the nation as to whether the Court engaged in “judicial activism.” The Court's ruling invalidated a statute that was adopted as a result of a 2000 ballot initiative, Proposition 22. That Proposition provided "Only marriage between a man and a woman is valid or recognized in California," and it passed with over 61 percent of the vote. The Court held that the law enacted by Proposition 22 was inconsistent with the California Constitution and concluded “[S]exual orientation, like race or gender, does not constitute a legitimate basis upon which to deny or withhold legal rights." The Court explained, “In view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” Both same-sex marriage advocates and opponents reacted strongly to this ruling with respect to whether the Court was “legislating from the bench.” This raises the issues of the basic definition of “judicial activism” and whether each side of the debate interprets it in a way that is to their advantage. Black’s Law Dictionary defines judicial activism as "a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." Matt Barber, policy director for cultural issues for the group Concerned Women for America, stated "The California Supreme Court has engaged in the worst kind of judicial activism today, abandoning its role as an objective interpreter of the law and instead legislating from the bench.” On the other side of the debate is the argument that it is important to understand the difference between judicial activism and judicial action, and the fact that the latter is something for which a court need not apologize. Michael C. Dorf, the Isidor & Seville Sulzbacher Professor of Law at Columbia University, stated “The claim that the Justices of the California Supreme Court confused their own policy preferences with the law is exactly backwards. T he critics of the ruling are upset precisely because the Court did follow the law. Should the voters of California respond by overriding the decision by ballot initiative, that will not in any way prove that the Court erred. It will show only that the voters have sullied the noble principle of equality with an exception rooted in prejudice.” Some same-sex marriage advocates have argued that opponents automatically accused the Court of engaging in judicial activism. Similarly, some same-sex marriage opponents have argued that advocates automatically defended the ruling since it came out in their favor. However, it is interesting to note that this divide is not so clear cut as these individuals claim. For example, a local college student interviewed by the Daily Bruin is a same-sex marriage advocate, but he believes that the Court did engage in judicial activism and that is the reason he voted for yes for Proposition 8. He stated “The day is coming when gay marriage will be accepted. Using judicial activism to coerce acceptance, though, is only hurting the cause.” Turning to the “other side” of the debate, a law professor who is against same sex marriage defends the Court’s ruling against the charge that the Court acted precipitously, moving faster than public opinion in an activist manner, and thus illegitimately. He argues that the Court made abundantly clear that its ruling rested solely on state constitutional grounds and that it rejected same sex marriage opponents’ argument by drawing an analogy to its own 1948 decision invalidating a law barring interracial marriage. He stated, “To say that the fundamental right to marriage can be denied to same-sex couples simply because it traditionally has been denied to them would, as the Court explained, be flatly inconsistent with its decision in the interracial marriage case. Likewise, gay, lesbian, and bisexual Americans have been, and continue to be, subject to discrimination and that warrant treating sexual orientation as a suspect classification, at least if one faithfully applies the principles laid down in prior cases.” So, did the California Supreme Court in In re Marriage Cases engage in judicial activism? As you can see, this really it depends on who you ask, and assuming that a person’s moral belief on the issue will sway their interpretation of the Court’s ruling will not always lead you to the answer that you would expect.