judicial activism and gay marriage rights

For those who have not been reading Andrew Sullivan on the issue of gay marriage, go read it. Now.

There is one more issue that needs to be considered in covering the full extent of the issues around gay marriage. That is judicial activism.

I've lived most of my life in the American South. Just this past Sunday, an African American (and a close friend of mine) stood in the pulpit of our church and told us how racism is still an issue in his life, in our church, in our homes and our country. This is 140 years after the civil war, and 50 years after Brown v. Board of Education.

I grew up in an all-white small town in Arkansas during the 50s and 60s. I was five years old when Gov. Orville Faubus called out the National Guard to block court-ordered integration in Little Rock's Central High School. Segregation, integration, court-ordered bussing, and race riots were the defining issues of my childhood, until Vietnam pushed them out of the spotlight. The fights and fears were huge. Earl Warren was vilified and condemned, as much as, and even more than, activist judges are today. And yet.....

The 15th amendment, the one that finally wrote slavery out of the Constitution, was added in 1870. By 1954, the year of Brown v. Board of Education, the United States had made virtually no progress towards integration. In place of slavery, there were poll taxes, segregation, poverty, ghettos, and illiteracy to keep black men and women "in their place." It took integration, first ordered by the courts years before the Civil Rights Act of 1964, for white people to begin to learn to live side by side with black people. As my friend reminded us, even today, "separate but equal" is still a part of the uneasy feelings between races in America. It is still with us because court orders overrode social prejudice, because the courts did not wait for the legislatures of America to do the right thing. Without judicial activism, what would be the state of race relations in the United States? We can't know, but we can look at history and see how much progress was made from legal equality, granted in 1870, until the courts took action 84 years later with Brown v. Board of Education.

This has direct bearing on the issue of marriage rights. Once again, we are being told that the courts should stay out of it, that we should wait for social opinion and state legislatures to "come around." Judicial activism is just as unpopular today as it was at the height of the civil rights movement, but we so easily forget just how much of the success of the civil rights movement was won in the courtrooms of America, on constitutional issues.

I ask you: What is the point of having a constitution which is the guarantor of liberty and equality, if the courts are expected to enforce social prejudice, instead of enforcing "the law of the land?" As with race, the first steps in legal recognition of gay marriage have come through the courts; it is the courts that have forced America to confront the issue. Andrew Sullivan noted, correctly, that "The president launched a war today against the civil rights of gay citizens and their families." Andrew also noted, correctly, that in the case of the war against terror, that it is a strategic disaster to conduct that war through law enforcement. What is the appropriate strategy for conducting the war for marriage rights?

The courts must have a place in this war, because the war is fundamentally about the role of law in the United States, and the meaning of the Constitution's guarantee of equal protection under the law. It is about not just the meaning, but the value of having a Declaration of Independence that promises inalienable rights of life, liberty, and the pursuit of happiness.

Judicial activism, in history and in practice, has largely been about enforcing those inalienable rights when those rights happen to be socially unpopular. In Hawaii and Vermont and Massachusetts, it has been the courts reminding the states that "all men are created equal" really does apply to everyone. The response to those court judgments has included Defense of Marriage Acts passed in 38 states and Congress, enough states to ratify a constitutional amendment. Now, in California, the Mayor of San Francisco is goading the courts to take up their job once again.

"Judicial activism" has not been about courts overstepping their boundaries. It has been about courts acting exactly within their constitutionally-defined role as check and balance on legislative and administrative power.

If the truly conservative position is to defend the role of the constitution as our guarantor of liberty, then it is also time for conservatives to come to terms with the role of the courts in defending our liberty and defending the constitution. That is not, and never was, the the sole responsibility of either the Congress or the President, precisely because of what we see today, that the Congress and the President are too easily influenced by social prejudice.

Judicial activism is about defending the rights of Americans, when those rights are under attack by America. Yesterday it was African Americans. Today it is gays and lesbians. Who will it be tomorrow, and will the courts still be free to protect those rights the next time it becomes necessary?

Diane