Judicial Activism & DOMA

Judicial Activism means using the judicial power to serve political, as opposed to judicial opinions. It is most tempting when one fails to persuade constituencies or congresses to do what one damn well knows that they ought to do.

As textbook examples of this, see the District Court decisions in Gill v. Office of Personnel Management and Massachusetts v. U.S. Dep't of Health and Human Services? In these cases the District Court struck down the Federal definition of marriage in The Defense of Marriage Act (DOMA).

Now I am on record as being in favor of legal, same sex marriages. That is a political opinion. I am also on record as opposing the use of judicial fiat to impose such opinions. I think that the laws have to be changed the old fashioned way: by legislating.

Here is Eugene Volokh's summary of the Gill case.

The court reasons that, at least as to various benefits provided by the federal government, the distinction that DOMA draws between opposite-sex married couples and same-sex couples married under the laws of those states that recognize same-sex marriage is irrational, and thus violates the equal protection component of the Due Process Clause.

It is true that a law must be rational to be legitimate. That's the so called rational basis test. But all that is required is that the law has some reasoning behind it. It doesn't matter whether you think the reasoning is sound. There is a perfectly rational basis for restricting benefits to opposite-sex married couples. The historical reason for benefit extension under marriage was to provide for children and mothers who share a greater responsibility for the birth and rearing of children.

To be sure, many heterosexual marriages do not involve children, and some same sex couples adopt. However, since heterosexual couples account for almost all the births and rearing of children under marriage, it is perfectly rational for a state or the Federal Government to favor that arrangement. I am not saying the state or Federal Government should make such a distinction. I think it best not to. I am just saying that it passes the rational basis test.

There are no big surprises in that. But look at what the District Court did in the Massachusetts case. From Jack Balkin:

Massachusetts v. HHS holds that federal programs that deny benefits to married same sex couples violate the Tenth Amendment because they intrude into a function exclusively reserved to states, namely the definition and regulation of marriage.

Wow. The District Court has suddenly struck a blow for states' rights, and affirmed one of the sacred (if untenable) arguments of conservatives. Let's look at the Tenth Amendment. From ePublius:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The trouble with that is that it is coherent only if you adopt a strict constructionist view of the Constitution. In that case, the Federal Government could do only what it is more or less explicitly authorized to do under the Constitution. It could for example issue coins but not paper currency. Meanwhile, the states could do anything they are not more or less explicitly forbidden to do.

For better or worse, and probably for the better, that is not the Constitution we have or one that we have ever had. The Federal Government is limited only by Constitutional prohibitions. The state governments are limited by that, and the Federal Government. In that context the Tenth Amendment is void because it gives us no idea which rights are which. How in Heaven's name do we know that the definition and regulation of marriage are exclusively reserved to the states? I missed that part of the Constitution.

I think that District Court Judge Joseph Tauro's approach to his job is reasonably clear. Whenever a state or Congress acts in a way that offends his politics, that is a violation of the Constitution. Whenever a state acts in a way favored by his politics, that action is protected by the Constitution. If you look up "Judicial Activism" in the dictionary, you should see his picture.

Comments

[SC Guy]

You can talk legal mumbo jumbo until you're blue in the face but the bottom line is that the founding fathers would never have intended for the US Constitution to be used to legalize same-sex marriages. We all know that, regardless of what side of the issue we're on. What many people seem to have a problem with is the fact that the United States, by and large, is a participatory democracy with voters having the right to directly weighing in to significant issues like this at the ballot box in most states. And many controversial issues are decided in this way, ranging from the death penalty to minimum wage to tax increases to abortion restrictions, etc. This is just the kind of democracy the US is.

[Chris]

Thank god SC Guy that you weren't in a position of power when segregation was the law of the land in many states and was struck down by an "activist" court. You don't often hear a rebuttal of that decision anymore. The founding fathers never envisioned an end to segregation either, yet their constitution made it happen.

[Chuck Anziulewicz]

Opponents of marriage equality for Gay couples speak passionately about “States Rights” and Federalism and so on … but the fact remains that MOST of the legal benefits, protections, and responsibilities of marriage are bestowed on couples by the FEDERAL government. They number 1,138 according to the Government Accounting Office (GAO). Most significantly they have to do with tax law and Social Security, so it simply wouldn’t do for a Gay couple that is legally married in Iowa to suddenly become UN-married once they move to a neighboring state. On the other hand, any heterosexual couple can fly off to Las Vegas for a drunken weekend and get married by an Elvis impersonator, and that marriage will be automatically honored in all 50 states, no questions asked.

This is why DOMA is transparently unconstitutional under both the 14th Amendment and the “Full Faith & Credit” clause. The fact that Judge Tauro found DOMA unconstitutional according to the 10th Amendment is just icing on the cake as far as I'm concerned. I know marriage equality for Gay couples makes some people uncomfortable. There are still many people today who are uncomfortable with people of different races marrying. But “popularity” and “constitutionality” are not always synonymous.

If the federal government wants to wash its hands of this and leave it to states to define marriage for themselves, the federal government had better be prepared to dispose of all the benefits of marriage under tax law, Social Security, and so forth. I wonder how many married STRAIGHT couples would be happy with THAT?

How is it that Straight (i.e. heterosexual) couples are encouraged to date, get engaged, marry, and build lives and families together in the context of monogamy and commitment, and that this is considered a very GOOD thing … yet for Gay couples to do exactly the same is somehow a BAD thing? To me this seems like a very poor value judgment.

It has nothing to do with religion, because the United States is not a theocracy. It has nothing to do with parenting, because one does not need a marriage license to have children, nor is the desire or even ability to have children a prerequisite for obtaining a marriage license.

Like it or not, there is simply no purely constitutional justification for denying law-abiding, taxpaying Gay couples the exact same legal benefits, protections, and responsibilities that Straight couples have always taken for granted.

ONE LAST POINT: To those people out there who still suggest that social justice must be reached through the legislative process, rather than through the courts, I would point to the history of racial injustice in this country. While I could choose any number of cases to make my point, I'll start with the most obvious - Brown v Board of Education of Topeka, Kansas. As everyone knows, this is the ruling that essentially reversed the Plessy v Ferguson "separate but equal" doctrine. Without the decision of the court in Brown v Board, it is impossible to say when the schools of America would have begun to integrate, but I believe it is safe to say it would have been much later. At the time, the Brown v Board decision was just as unpopular with certain segments of the population as a decision today would be that grants Gay couples equal marriage rights. Looking back, I think we can all agree that the unpopularity of the decision did not make it wrong.

[BillW]

Chuck,

Nothing like a little selective history. How about the matter of slavery ... you remember - the courts upheld the Dred Scott decision, the Fugitive Slave Act, Justice Taney demanding that the writ of habeus corpus be applied to rebel sympathizers. Seems to me the the people of the United States were the ones that ended slavery - in spite of the courts.

same sex marriage has been defeated every time it has been on a ballot. Not just "certain segments of the population" - in EVERY segment that has had a vote. Are you suggesting that the will of the people in a democracy be subverted to the all-knowing wisdom of nine savants on the Supreme Court because it is your opinion that the people would not have supported school segregation back in the 1950's had it been on a national ballot?

[Erik]

KB: Excellent analysis of the DOMA decision. Enjoy the time "off the grid" with the family. I find leaving your computer and cell phone at home does the trick.

[Jose]

Dear Friends in Christ,I want to thank Fr. Z for lending his impontart voice in support of marriage and our upcoming Minnesota Protection Amendment. I have been an admirer of his for many years. Thanks to all of you for supporting this worthy and impontart cause. As all of you know, we at the Minnesota Catholic Conference, the public policy arm of the Catholic Church in Minnesota, are working overtime to protect marriage and ensure the people of our state get out the vote on November 6th. Just to clarify: a non-vote is a no vote is policy for every proposed amendment to the Minnesota constitution. The rationale for this is that whenever changing the constitution, government should err on the side of caution. The no vote policy only applies to those who will be voting in the upcoming election. Right or wrong, I want to make sure we understand the Marriage Protection Amendment is not being singled out.I would caution against making this a Left/Right issue, given that some prominent conservatives are backing marriage's redefinition and others are arguing government should stay out of the marriage business altogether. As I travel across the state I've seen how the labeling of conservative and progressive has become increasingly irrelevant, specifically on this issue. Thankfully, the debate over the redefinition marriage gives the Catholic Church an opportunity to enter the public square and teach with Her majestic voice. The public debate over marriage is often framed around the question of who can marry. But before we can ask ourselves who can marry we must ask ourselves what marriage is. Marriage isn’t a distinguished title bestowed upon couples by the state nor is marriage the public affirmation of romantic relationships. Marriage isn’t about the happiness of adults or the public benefits derived thereof, benefits that can be easily acquired through private legal contract. Society has a keen interest in marriage because unlike other relationships marriage serves a public purpose. What purpose? Marriage is special because it unites one man and one woman and any children born from their union. It’s precisely because marriage is a child-centered institution that government is involved in the marriage business As I travel across Minnesota giving talks to parishes and KofC local councils, I ask the faithful to pray for us. Please consider keeping us in your intentions. Minnesotans or not, we are all Catholics and all eyes should be on Minnesota from now until November. In Domino,Richard Aleman[Thanks for chiming in! You are welcome here.]