During the State of the Union address last night, George III blamed "activist judges" for all of the problems concerning same-sex marriages. This conveniently ignores the elected bodies, such as many city councils, that have actually led the courts toward something. For the moment, I'll ignore the unacceptable sectarian component to his position. The Perfesser praises (or at least remarks upon) Bush's attempt to shift the argument from its substance to its procedure:
The move Bush makes here is to begin shifting the terms of the debate from outcome to process. Yes, he's still focusing too much on whether the law should recognize gay marriage, but at least he has begun to shift attention to the real question, which is "who decides"? The people's elected representatives or the imperial judiciary?
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Whatever happens with the legal institution of marriage, however, ought to happen as a result of democratic processes rather than by judicial fiat. The founders of our republic set up a carefully nuanced set of checks and balances, but the last couple of generations of Americans have allowed nine unelected old men and women to seize control of a vast array of deeply contentionous social and cultural issues of national import knowing that they are immune from being held accountable for their decisions. Our judges now use the law to impose elite opinion about how society should be ordered regardless of the democratic will. We have become courtroom spectators rather than participants in the democratic process. It is as the famed First Things symposium put it, The End of Democracy.
DOMA, the FMA, and the SOTU (21 Jan 04) (emphasis added).
The snide rejoinder is Loving v. Virginia, 388 U.S. 1 (1967), which required the Supreme Court to tell the "elected representatives" in Virginia that Brown means that miscegenation (interracial marriage) statutes are unconstitutional. Of course, that is an instance of active disdain for the rule of law by the legislature in question, as they had been told repeatedly by their legal advisors that the statute was unconstitutional.
More seriously, I lived in England for several years while on active duty, particularly during the Spycatcher controversy. (IMNSHO, nothing in Spycatcher would have endangered actual intelligence-gathering or counterintelligence; but the details fall under my NDA.) An "imperial" judiciary is the best counterweight to an "imperial" legislature. (Keep in mind that we do not have a democracy in this country; we have a democratic republic.) That is precisely what there is in the UK, with its constitution that consists of all the laws of England, toothless Law Lords (although that might be changing), and tradition of autocracy. That is the danger of allowing rights of minorities—however constituted—to be the exclusive province of the elected branch(es) of government.
Courts have an important role to play in this whole debate. The extent to which courts are making policy decisions that are improper is inextricably intertwined with the question of recognition of rights—both what and whose—and one that cannot be evaded by appealing to the wisdom purportedly inherent in elected representatives. The courts did not give us Jim Crow, "three-fifths of all others," the Alien and Sedition Acts, HUAC, or Richard Nixon. They are by no means perfect; it did, after all, take legislative action to force consistent recognition of disabilities and age discrimination. My point is that even when the courts (or conversely the elected branches) are "overstepping their bounds," it is ordinarily in response to paralysis in the area. Nature abhors a vacuum; so does power; so does society.
So, in that way, I simply cannot agree with the Perfesser (or the President) that the courts have been excessively activist in the same-sex marriage arena; after all, all of the "objectionable" law in terms of actual rights has been imposed by elected officials, not courts. Lawrence only indicated that the right case might result in the Supreme Court possibly declaring a right to same-sex marriage. This is, in other words, a straw-man argument: the problem is that elected officials in some jurisdictions are disagreeing with the "sanctity of marriage" position and implementing it in their own ways. Blaming the courts for that—with the specter of Padilla and Hamdi carefully relegated to silence, which is ironically appropriate—is at best a non sequitur, but is more likely the misdirection of a stage magician.