Judicial Activism, Gay Marriage, and Election 2008

Taking a look at the positions of Barack Obama and John McCain on the issue of gay marriage there is frankly not enough of a difference to make it a campaign issue on its own. Neither one supports a federal marriage amendment. Both believe that the issue of gay marriage should be left up to the states. The only difference is that John McCain is much more forceful in believing that states should rule that marriage should be between one man and one woman. This alone is not enough to make gay marriage an issue in this election.

Gay marriage became a huge winning issue for Republicans everywhere in 2004 when eleven states put measures on their ballot defining it as one man and one woman. Those states included the battle ground state of Ohio where George Bush won by just over 100,000 votes.

Where the issue of gay marriage can become an issue in this campaign is on the issue of judicial activism. Let's take a look at what John McCain sees the court should and should not do.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

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One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts w andering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.

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I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them -- the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice. Thank you very much.

Thus, John McCain is looking for judges to strictly interpret what is said in the Constitution. He even mentioned Justice Alito and Roberts by name. The sort of judges that McCain would appoint would never stand for making gay marriage legal because the right to gay marriage is NOT in the Constitution.



Now, let's look at Barack Obama's judicial philosophy.

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.

In fact, here is how Rudy Giuliani described such a philosophy.

KELLY: Well, it didn’t take long for Obama’s camp to fire right back. At that, we’ll get to the Obama campaign reaction in a minute. First, we want to get the mayor’s reaction to John McCain’s accusation saying that Obama — and he actually took aim at Clinton, too, having an elitist view of judges.

GIULIANI: I would say that’s a very legitimate difference, rather than a charge or an accusation. John McCain is going to appoint judges who are conservative. Barack Obama will appoint judges who are left-wing. He will appoint activist judges who are activist judges in the sense of trying to take the Constitution and move it into solving social problems rather than feeling stuck with the words of the Constitution.

KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”
Why the laughter?

GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.
And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.

I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?

By making his focus on the nebulous concept of justice for the weak, Barack Obama is inherently saying that he will appoint judicial activists, because what he wants is a justice who's first priority is to provide an outlet where the weak have a voice. If that means they create law so be it, because that is not his first priority. In fact, one could easily take away that the weak include all those gay folks that don't have a "right to marry".

Interestingly enough, it is a matter of debate among pundits whether or not the California Supreme Court ruling was in fact activist. To me, there is little debate. The court found a right that wasn't spelled out in the Constitution of California. There is no "right to marry" anywhere in the Consitution. Furthermore, the Court gave its activism away when they limited that right to gay couples but didn't extend that same right to swingers, polygamists, or transvestites. While the court argued that this was a matter of equal protection under the law, they didn't extend the same protection to any other sexual lifestyles. This is the definition of judicial activism.

Furthermore, it will have all sorts of legs in the next campaign if John McCain chooses to make it an issue. In California, marriage being between one man and one woman was voted on by over 60% of the people, and then gay marriage was created by four judges. Here is how Barack Obama responded to the ruling.

"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president," his campaign's statement read. "He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."

Here is how John McCain viewed it.

Sen. John McCain supported the 1996 Defense of Marriage Act, which banned federal recognition of gay marriage and domestic partnerships. Both Sen. Barack Obama and Sen. Hillary Rodham Clinton have called the law discriminatory and want to see it repealed.

McCain and Clinton have taken different tacks in their home bases. McCain supported a 2006 Arizona ballot initiative banning gay marriage, "to protect the sanctity of marriage," he said.

In order for McCain to make this a winning issue, he must frame this issue as one of judicial activism. The sort of judges that created a "right to marry" in California are exactly the sort of judges that Barack Obama would appoint to the Supreme Court and all other courts. John McCain must frame the issue of gay marriage is one that the people and the lawmakers should decide.

Steve Chapman of the Chicago Tribune, himself a proponent of gay marriage, framed the issue quite well in my opinion.

In the old story, a preacher gives an inspiring sermon, which he concludes by asking his congregants to stand up if they want to go to heaven. Everyone rises except one nervous-looking fellow. "Brother," asks the incredulous pastor, "don't you want to ascend to paradise when you die?" Says the holdout: "When I die? Sure! I thought you were getting up a group to go right now."

That's pretty much how I feel about the California Supreme Court's decision granting the right of same-sex couples to marry. The destination is a good one. I just wish the court weren't in such a hurry to get there.

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But all of a sudden, the justices have discovered that their state constitution not only allows but requires that marriage include homosexual couples -- even though in 2000, 61 percent of the state's voters rejected that option.

The majority is not always right, and in that instance, I thought the majority was wrong. But democracy doesn't say the people will always be right. It merely says they have the right to decide most matters of public policy. Here, by contrast, the California Supreme Court says the citizenry has no right to define marriage the way it has been defined by custom and law for eons.

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It reached this conclusion through a lot of philosophizing about "the right of same-sex couples to have their official family relationship accorded the same dignity, respect and stature as that accorded to other officially recognized family relationships." But the state constitution (like the federal one) does not traffic in mushy terms like "dignity" and "stature." When a court puts such heavy reliance on amorphous concepts, it telegraphs that it will not be tied down by the actual words of the state charter.

For further proof, consider that while the California constitution forbids discrimination on the basis of "sex, race, creed, color, or national or ethnic origin," it does not forbid discrimination on the basis of sexual orientation. The justices somehow found something in the document that the authors thought they omitted.

In other words, Chapman thinks that in due time gay marriage will become accepted, but that we must reach this conclusion through legislative action not judicial fiat. Furthermore, Chapman points out the extraordinary activism this court took in creating this right.

Given, not only the general public's affront to gay marriage itself, but also to judicial acitivism in general, this is an issue that John McCain must take advantage. His biggest political tool on this matter is painting Barack Obama is a candidate in favor appointing the sort of activists that will create a "right to marry" in the Constitution. It remains to be seen if he does this.