Judge Advocates

by Joseph Landau | February 24, 2004

In announcing yesterday morning that he would back a constitutional amendment to ban gay marriage, President Bush resorted--as he has often done in the past--to a favorite tactic of social conservatives: attacking the straw man of judicial activism rather than focusing on the merits of the issue at hand. Opponents of gay marriage have sought to frame the debate over their proposed constitutional amendment as a matter of shielding voters and their elected representatives--that is, state politicians and local officials--from the whims of allegedly activist judges. But by allowing city officials to issue wedding permits to same-sex couples, San Francisco Mayor Gavin Newsom has thrown a major wrench into this strategy. Newsom, after all, is an elected official, and he is therefore part of the very group gay marriage opponents have long claimed they are trying to protect.

How did Bush handle this inconvenient fact in his statement yesterday? He simply appended "local officials" to his usual denunciation of "activist judges." "Some activist judges and local officials," he said, "have made an aggressive attempt to redefine marriage." But this isn't particularly persuasive reasoning. It would seem, after all, to be a logical impossibility that a popularly elected mayor could thwart the democratic will of the people, when he is himself the embodiment of that same democratic will. This leaves Bush and his allies in a difficult spot: If elected representatives are themselves taking steps to legalize gay marriage, then where will conservatives turn for remediation?

We already have the answer to that question: They are turning to their putative nemeses--activist judges. Conservatives have already launched a slew of legal challenges to immediately halt gay weddings. Last week, conservative groups hauled San Francisco city officials into court to defend the city's authority to allow gay marriages. Terry L. Thompson of the Alliance Defense Fund, one of the groups that brought the suit, claimed that the issue of gay marriage was one of "legal anarchy" and democratic legitimacy. "The mayor can't decide what is constitutional or what is unconstitutional," he told the San Francisco Chronicle. "Only an appellate court judge can do that." Another organization, the Proposition 22 Legal Defense and Education Fund, went to court on February 13 to try to get an immediate order to halt weddings scheduled to take place on Valentine's Day. (The effort failed.) The plaintiffs in the cases have argued that Proposition 22, a ballot initiative passed by California voters in 2000, already defines marriage as exclusively between a man and a woman.

This sudden reliance on the judiciary is odd given what conservatives have had to say about judicial activism and gay rights over the years. The right scorned as anti-democratic the Supreme Court's decision last June in Lawrence v. Texas, which invalidated 13 state sodomy laws. Justice Antonin Scalia wrote that the judiciary was "so imbued ... with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream.'" After the Massachusetts Supreme Judicial Court issued a ruling forbidding discrimination in marriage against gays and lesbians in November, President Bush railed against the decision in his State of the Union. "Activist judges," the president declared, "have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. On an issue of such great consequence, the people's voice must be heard."

This ploy didn't originate with the controversy over marriage: Conservatives have for years attempted to portray any legal victory for gay rights as a defeat for the democratic process. "Whenever the right wing gets a ruling they don't like," says Evan Wolfson, executive director of Freedom To Marry, a group that favors gay marriage, "they attack the judges, intimidate the courts, and try to re-write the rules."

After the U.S. Supreme Court invalidated an amendment to the Colorado state constitution in 1996 that would have prevented localities from passing laws barring sexual-orientation discrimination, the Catholic magazine First Things devoted an entire issue to the problem of the so-called imperial judiciary, and published a symposium on the topic titled, "The End of Democracy?" The magazine's editors posed the question of whether "we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." In 2000, conservatives cheered the Supreme Court for blocking the enforcement of a New Jersey law that would have required the Boy Scouts of America to allow a gay man to serve as a scout leader. In California, the Alliance Defense Fund tried (unsuccessfully) last year to block a domestic partnership measure enacted by the California legislature and signed by former Governor Gray Davis; the group argued that the measure conflicted with Proposition 22. The law grants a number of rights to registered same-sex partners--including child custody, child support, and medical leave--and takes effect in 2005.

Of course, conservatives haven't limited their hypocrisy on judicial activism to the arena of gay rights. They have frequently sought judicial remedy when the will of popularly elected representatives didn't square with conservative beliefs on issues such as affirmative action and campaign finance reform. But in the realm of gay rights, President Bush and other conservative politicians have staked such a disproportionate percentage of their rhetoric on the need to rein in an activist judiciary that their decision to go to court when it suits their ends surely exposes just how hollow and cynical their arguments against judicial activism have been.

And the truly bad news for opponents of gay marriage is that they may find themselves seeking refuge in the arms of the judiciary more frequently, as other locales follow in San Francisco's footsteps. In New Mexico, the clerk of Sandoval County (near Santa Fe) briefly issued marriage licenses to same-sex couples before the state attorney general intervened. Meanwhile, mayors in Chicago, Salt Lake City, and Plattsburgh, New York have also expressed support for extending marriage rights to gays and lesbians (though they cannot issue such licenses because they lack San Francisco's status of being both a city and a county). Bush may say that "the people's voice must be heard." But only, apparently, when they agree with him.

Joseph Landau is a former TNR assistant managing editor and an associate at the law firm of Cleary, Gottlieb, Steen & Hamilton.

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