Judicial What?

There are some arguments and discussions I just stay out of, because of the likelihood that I’ll very quickly find myself completely out of my depth. I hang back, and listen to the various arguments, and try to formulate an opinion—which I may or may not express. Some part of my brain takes heed of the old saying, “Better to remain silent and be thought a fool, than to speak and remove all doubt.” But there are some arguments that I just can’t stay out of, and it’s usually because I have have too much at stake. (Naturally, those are the arguments that I probably should stay out of, because there’s little hope of my being able to argue objectively.)

It was inevitable that the same sex marriages which began taking place in Massachusetts yesterday would ignite numerous discussions in the blogosphere. Yesterday, while reading Three Years of Hell to Become the Devil, I stumbled into just such a discussion.

Echoing the president’s sentiments about “activist judges” A. Rickey writes:

I have a lot of strong feelings about this, but curiously they’re mostly political: over the last year I’ve watched everything I despise about the judiciary run amok.

…I’ve opposed Goodridge from the beginning, not because I gave two hoots about who gets married to whom, but because the way this change has occurred weakens the fabric of our democracy. Congratulations, Supreme Judicial Court of Massachusetts: you’ve made yet one more issue that–at least in the realm of politics–dares not speak its name.

OK. I really need someone to explain this to me. And I mean explain it to me like I’m four years old. Isn’t it the job of the judiciary, or the state supreme court, to examine and interpret the law against the state constitution? And if the state constitution is the supreme law of the state (excluding, of course, the U.S. Constitution, which I assume trumps the state constitution), doesn’t the judiciary then examine the law to determine if it’s constitutional? Or, in this case, isn’t the supreme court tasked with resolving constitutional questions that reach its docket? Assuming that the case is legitimte and brought by people who have standing to bring a complaint before the court?

And the big question: if the Massachusetts Supreme Court had ruled the otherway, would that have been “judicial activism”? Or is it only called judicial activism when the the court’s ruling upsets the status quo?

If this isn’t what the state supreme court is suppose to do, then what is?

As for what this does to the “frabric of our democracy” I don’t suppose it does much of anything, considering that, as one commenter said,

Yes, but America is not a democracy. It’s a republic, & we have a Constitution, which sets aside certain state powers & actions as simply beyond the pale, no matter the wishes of shifting ephemeral majorities, and it’s subject to change only after approval by super-duper majority consensus through the ratification process.

The way I see it, one of the things that a republic, or at least our republic does by design is to preserve democracy and protect the rights of the minority against the tyranny that can result from absolute majority rule. For example, the majority of citizens might decide that it ought to be a crime to criticize the president’s policies. They might be strong enough and loud enough in number to get such a law passed. However, the Supreme Court—once a legitimate case winds its way to them through the lower courts—can decide that such a law violates the first amendment. You are once again free to call the president a blockhead without fear of being hauled off to jail and/or fined.

I think one of the great things about the way our system is set up is that it give those in the minority both a chance to be heard, but also a chance to acquire justice when an injustice has been done, regardless of majority sentiment. On some level, the system recognizes that might does not make right. The majority may be wrong. What the majority wants may be unjust, and thus does not necessarily have to stand. Six million or so Massachusetts citizens can be wrong.

Fortunately, we don’t have absolute majority rule in this country. If we did I shudder to think what rights and protections some Americans would still be waiting for the majority to decide to share.

I guess it comes down to a choice between modes of social change; a choice of rapid vs. gradual social change. The Massachusetts Supreme Court did in just a short time what would likely have taken another 20 to 30 years to accomplish, if then. The court that decided Brown v. Board of education did what would have taken several more generations to even start. I suppose it’s only natural for a group of people who are suffering discrimination or other injustice to desire a more rapid course to relief; just as natural as it is for those who benefit or derive priviledge from the status quo to be reluctant to change it in a way that requires them to give up or share what has been their exclusive priviledge thus far.

Of course, the judiciary isn’t the only route to achieving justice. It isn’t the only means of settling the question. Public education and lobbying efforts can be and are often productive. In my personal and professional life, I’ve participated in both. Hearts and minds can and do change. Polls have shown that a majority of people who know someone who is gay or lesbian tend to believe that gays and lesbians should not be discriminated against because of their sexual orientation. But it’s not the only route to acquiring justice. And it’s not any more (or less) legitimate that the judicial route.

The answer from the majority—to those seeking equality, justice, and the like—is always “Wait. Wait until we feel like it.” Some of us are still waiting, and balk at bein asked to endure injustice for a while longer. Meanwhile we face discrimination without protection. Meanwhile we live without the rights and protections our friends and neighbors enjoy. Meanwhile our families live without the same rights and protections as the family down the street or on the other side of town. Sure, we have devised legal methods to gain one or two of the 1000+ rights, protections and priviledges automatically granted to heterosexuals who marry one another. Just across the Potomac, Virginia wants to deny us even that much. I suppose those in favor of absolute majority rule would let them, and just expect us to take it.

What is comes down to is this: either we are equal citizens or we are not. We are either full citizens, or second class citizens. This is the part where I get to what I have at stake in this discussion, because ultimately it is my day to day life that’s being discussed, and that some people want to put to a vote. To be objective here, I’d have to disengage my heart, and that’s not something I’ve ever learned to do. You see, at the end of the day, I just want the same rights and protections as any other citizen; and I want my family to have the same rights and protections as any other family.

Anytime I want to know what I have at stake in this fight all I have to do is look around me, at my partner, our son, and our home. While others want to discuss and debate what should or shouldn’t be done concerning us, all that we have hangs in the balance. We’re here, we’re a family, and we’re not going away. We can’t be debated or voted our of existance. And we won’t accept being treated as something less than any other family. I don’t accept that from my own parents, so I’m not about to accept it from a state legislature, the federal government, or any number of voters.

Massachusetts is only the beginning. There will be case after case after case, until there is justice.

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One Response to Judicial What?

  1. Mike says:

    Judicial activism is imperfect at best as a substitute for a gutless legislature. Why not back a citizen’s initiative referendum on a law removing gender from marriage, essentially making it the union of two people rather than the union of one man and one woman? People are reasonable, they will see the merits. Why leave this in the hands of judges? It is not the vocation of the judiciary to make laws, it is only their job to intepret them in regards to the constitution. If the legislatures do not have the guts to tackle the issue, why not let the voters? This is a democracy after all, is it not?

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