The recent kerfuffle over California’s Proposition 8 “gay marriage ban” and its recent overturning by a Federal appeals court got me thinking about the concept of judicial activism. It is a term that seems to be deliberately obfuscated on both sides of the political aisle.
Conservatives routinely accuse liberal judges of using judicial activism to bypass the will of the people and enshrine controversial leftist policies into law. Liberals accuse conservatives of a desire to perpetuate bigotry and discrimination, pointing out that it was the activism behind landmark court cases like Brown v. Board of Education that paved the way for the Civil Rights movement of the 1960’s.
Is there such a thing as good judicial activism? In a word, ‘yes,’ and the Civil Rights movement is in fact a perfect example. After World War II, white Americans became much more aware of the discrimination faced by blacks, particularly in the Jim Crow South. After fighting a war to rid the world of tyranny, it seemed even more disturbing that the Land of the Free was keeping a significant portion of its own people from enjoying the rights and freedoms that were the foundation of our Constitution and Declaration of Independence.
Although many (particularly in the Deep South) strongly resisted efforts to end legalized segregation, a series of pivotal events including the Emmett Till murder and Rosa Parks’ historic standoff with authorities aboard a Montgomery, Alabama bus gradually convinced the nation at large that something was wrong.
But the political power of the Southern Democrats was very strong. In previous decades, they had twice defeated Congressional anti-lynching legislation. President Eisenhower publicly opposed segregation, but history seemed to indicate that blacks could not count on Congress to pass legislation that would effectively end Jim Crow.
Undoubtedly it was the courts, through their rulings that compelled school districts in the South to begin the process of desegregation, that finally cracked the veneer of racism in America. Empowered by court-ordered desegregation and armed with the strategy of non-violence (in direct contrast to the violent reaction of whites) the Civil Rights movement fully manifested itself in the early 1960’s culminating in the 1964 Civil Rights Act and the 1965 Voting Rights Act.
Interestingly though, the civil rights movement also gave us a perfect example of bad judicial activism — court-ordered busing. In the late 1960’s Federal judges realized that racially segregated neighborhoods were the major contributing factor to lingering school segregation problems. In an ill-conceived effort to diversify the racial composition of schools, courts began to order school districts to bus students across town in order to achieve racial balance. These rulings proved to be extremely unpopular with blacks as well as whites. Wikipedia notes:
Even though school districts provided zero-fare bus transportation to and from students’ assigned schools, those schools were in some cases many miles away from students’ homes, which often presented problems to them and their families. In addition, many families were angry about having to send their children miles to another school in an unfamiliar neighborhood when there was an available school a short distance away. The movement of large numbers of white families to suburbs of large cities, so-called white flight, reduced the effectiveness of the policy. Many whites who stayed moved their children into private or parochial schools; these effects combined to make many urban school districts predominantly nonwhite, reducing any effectiveness mandatory busing may have had.
Judicial activism can be a good thing, if public opinion is in the process of aligning with the opinion of the court, and court rulings can be legitimately understood as a means necessary to overcome diminishing, though still powerful, pockets of resistance. But it is a bad thing when the power of the court is used to overturn the clearly-expressed will of the people (such as a public referendum), or to circumvent democracy in the form of the legislative process.
All of this brings us back to Chief Judge Vaughn R. Walker’s decision regarding California’s Proposition 8 referendum. This is clearly a case of bad judicial activism. The vote in California may have been close (52% – 48%), but nationwide opinion is clearly on the side of traditional marriage. In 2004, eleven states voted on legislation or constitutional amendments that would define marriage as a legal union between a man and a woman. Those questions passed with double-digit margins in all eleven states; the margin here in Oklahoma was 3:1, and Mississippi ‘s referendum passed with a whopping 86% of the vote.
While the majority of Americans clearly support equal rights for LGBT citizens, and a majority would also probably support secular same-sex civil unions or domestic partnerships, it is also very clear that a vast majority of Americans DO NOT support tampering with the traditional definition of marriage. Any attempt by courts to overrule the will of the people with respect to such deeply-held beliefs will leave us fractured and bitter, just as the court-imposed legalization of abortion did, nearly 40 years ago.