Following the decision of two Californian judges not to injunct the San Francisco granting of marriage licenses to same sex couples President Bush has again said that he is troubled by “activist judges, who are defining marriage”

“I’m watching very carefully, but I’m troubled by what I’ve seen. People need to be involved with this decision. Marriage ought to be defined by the people, not by the courts, and I’m watching carefully,” he said according to the LA Times.

Bush’s performance, like so many others in this debate, is fascinating.

The judges in the Massachusetts case which started it all, and which the City of San Francisco is following, based their decision on the state’s constitution. Just as the national Supreme court judges, in the recent Texas sodomy case, based their decision on the most sacred document of US democracy, the Constitution which begins: “We the people….”

Bush’s contrast between activist judges and the people is a furphy. In classic democratic theory, judges are just as much a representative of the will of the people as elected officials because they are the guardians of the constitution which supposedly embodies the essence of American identity. The judicial arm provides a balance in the system of checks and balances that ensures that the will of the people rather than the will of cliques are enacted.

Of course when it suits him Bush has no problem with activist judges. He has appointed more activist judges than anyone else Vanity Fair (December 2003, can’t provide a link because incredibly VF doesn’t have a site!) recently reported that Bush had nominated 164 judges to Federal courts, all of them extreme right wing activists with perfect Federalist Society credentials. Janice Rogers Brown, who has already been nominated to the Federal circuit and who Bush is tipped to nominate to the Supreme Court, is described by one Vanity Fair source as the dream conservative candidate, “the love child of Ayn Rand and Lyndon LaRouche”

These Bush nominees are not only activist judges on traditional conservative push button issues like abortion, they are waging a much larger ideological war. Legal scholar Cass Sunstein outlined the potential threat of this agenda in an American Prosepct article last year.

If the judiciary’s current tendencies are not monitored and exposed for what they are, they may go beyond the Rehnquist Court’s relatively incremental decisions to far larger changes in American law. We could easily imagine a situation in which federal judges not only eliminate affirmative-action programs entirely but also:

– strike down almost all campaign-finance reform;

– invalidate parts of the Endangered Species Act and the Clean Water Act;

– interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation;

– elevate commercial advertising to the same status as political speech, thus preventing controls on commercials by tobacco companies (among others);

– further reduce congressional power under the commerce clause and the 14th Amendment;

– generally limit democratic efforts to prevent disabled people, women and the elderly from various forms of discrimination;

– significantly extend the reach of the “takings” clause, thus limiting environmental and other regulatory legislation; and much more.

The gay marriage debate because it is so volitile has a way of drawing out the fissures in both society and ideological thinking, it catches people saying things that on closer inspection don’t add up.

Andrew Sullivan’s analysis of John Kerry’s flip-flopping on gay marriage is a perfect example and shows how same sex marriage confuses those on both sides of the ideological divide:

HOLT: You say you oppose gay marriage. As you know, the highest court in the state of Massachusetts has ruled against civil unions, which you support. If it were to come before you today for a vote, the issue of a constitutional amendment defining marriage as that between a man and a woman, would you vote yes or would you vote no?

KERRY: Well, it depends on the terminology, because it depends on what it does with respect to civil unions and partnership rights. About the rights, I believe that it is important in America not to discriminate with respect to rights. I, personally, believe that marriage is between a man and a woman.

In two sentences, Kerry says two things that, in the view of the Massachusetts Supreme Judicial Court, are contradictory. The court was asked whether partitioning gay couples into an institution called “civil unions” was discriminatory or not. The judges said it was–because civil unions reinforce stigma and exclusion for no rational reason. If Kerry believes that civil unions do not do such a thing, he should explain why. Instead he just repeats the contradiction.

The basic question is: Why should the government grant a marriage license to two people who do not have biological children of their own, while denying such a license to two equally qualified people who also have no biological children of their own? Kerry’s civil marriage to Teresa Heinz falls into the childless category. It also falls into a category condemned by the Catholic Church–a second marriage after a divorce. Kerry needs to explain why what’s good enough for him isn’t good enough for a gay couple. He hasn’t. He won’t. He wants to pander to prejudice while maintaining he is in favor of equality.

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