Activist? Or interpreting without bias?

In a partial win for marriage equality, DOMA was declared unconstitutional – making it possible that gay couples married legally (in any of the states that have marriage equality) will be eligible for all the same federal rights and benefits that heterosexual couples are eligible for (Social Security survivor benefits, joint tax filing, etc.). The ruling covers only the federal government’s role in marriage – it says nothing about all states recognizing gay marriage, for example. That’s why it’s only a partial win. It’s still great news.

This issue reminds me of the “activist judge” debate that appears now and then.

“Activist judges,” they say, are judges that make decisions that (others claim) are activism on the bench. Decisions in favor of gay marriage are sometimes called activist, and the judges called activists for them. I think the idea of an “activist judge” is more than just misguided, particularly in most of the real world cases in which that title has been invoked. In the case of gay marriage (or racial equality under the law, gender equality under the law, etc.), calling judges activists is not just misguided – it’s completely incorrect.

Instead, perhaps judges should be divided into (at least) two categories: traditionalists and interpreters.

Traditionalists seem to take traditional ideas – both of law and society – into account when making their decisions. Instead of reading the law and deciding based on what the laws actually say, they read the law from a perspective tinted by traditions – traditional marriage as between a man and woman, traditional race roles, traditional gender roles, traditional views of things like abortion or cloning. “Separate but equal” may be a good example of what I mean.

An interpreter, on the other hand, reads the laws and decides. We want this kind of judge because they are relatively unbiased. If the Constitution says all citizens are equal, all citizens are equal. If a law violates this, an interpreter would realize it and decide accordingly that the law is unconstitutional.

Instead of “activist” judges, we have judges willing to make decisions from a relatively unbiased viewpoint. That upsets people who want to hold tightly to their traditions and want the rest of their country or state to be forced into observing those traditions as well.

If the judges in the case I mentioned above were truly activists, they would have found some way to claim, rightly or wrongly, that states must recognize marriages between both hetero- and homosexual couples, or at least that states must recognize all marriages performed within other states*. Instead, the judges made a decision covering only a part (albeit important) of the problems with DOMA.

*I’m no legal scholar, but I’m pretty sure Article IV, Section 1 of the US Constitution says that marriages must be recognized across state lines (although the word “marriage” isn’t actually mentioned). At least that’s what they taught us it means in public school. Not sure how that can be ignored.

 Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

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3 thoughts on “Activist? Or interpreting without bias?

  1. Ben says:

    That was nicely written, I agree on all points!

    And thank you for bringing up Article IV. I’d wondered about that before and it does seem like it should apply to marriage as both a public act and a judicial proceeding. So I guess either we’re missing something, or that idea is outside the traditional interpretation of it.

  2. Jimi says:

    This is exactly where the problem of having separate states within the country is so bad. We have federal laws AND state laws and when they conflict with each other, the majority of the time the USSC tends to side with the states. However, in refusing to accept a same-sex marriage that was legally done in one state sets a dangerous precedence, as another state can ultimately decide that they do not recognize any marriage performed in say, North Carolina.

  3. Rob F says:

    For the most part, there is no such thing as judicial activism. When used in pundit/popular circles, the term can almost always be interpreted as a pejorative way of saying “I disagree with the court decision” without any loss of meaning.

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