Thursday, August 05, 2004

It’s Time to Put a Stop to Judicial Activism

The Associated Press reports that Judge William L. Downing of the Kings County, Washington, Superior Court has ruled that a Washington state law preventing same-sex marriages does not serve the interests of the state, and deprives same-sex couples of their constitutional right to due process. The judge’s decision must be reviewed by the Supreme Court in Washington state before marriage licenses are issued, according to the report. (Another report, from the Seattle Times, can be found here.)

In a way, this is a “Paul Revere” moment (although those of you who know me -- or have seen me -- will probably hurt yourselves laughing at the image of me on horseback shouting, “To arms! To arms!”): The system is breaking down; and something must be done, now, to put things right. Let’s consider a few things, from what Judge Downing’s ruling is reported to contain.

The right to due process is found first in the Fifth Amendment to the U.S. Constitution, which provides (among other things) that no person shall be deprived of life, liberty, or property without due process of law. The first paragraph of the Fourteenth Amendment extends this language from the federal level to the state level, adding as well that each person is entitled to equal protection under the law. Thus, the right to due process is, indeed, a constitutional right. (By the way, an excellent discussion of “due process” can be found at the U.S. Constitution On-line web site. Among other points, the origins of due process are found in the Magna Carta.)

It’s difficult for me (not an attorney) to comment specifically, as I haven’t yet read the actual text of Judge Downing’s ruling. This won’t stop me from going out on a limb! Clearly, a state law prohibiting the recognition of same-sex unions as marriages does not deprive anyone of their life or property; so, if there is a violation of due process, it must be bound up with the deprivation of “liberty.” Here’s where the origins of due process in the Magna Carta takes on some importance.

Today, we tend to equate “liberty” with “freedom.” Quick: think of two or three sentences using the word “liberty.” I’ll bet that you came up with the following (or something very close to them): First, you won’t have a sentence, but a phrase: “life, liberty, and the pursuit of happiness.” (We’ll come back to this one.) Next, “I’m not at liberty to say.” Third, “He was taking liberties with me.” The last, translated, means, “He thought he was free to do what he wanted.” The second, translated, means that you are not free to tell what you know. And the first, a phrase from the Declaration of Independence, shows a division of thought that may be blurred for most of us today: “liberty” is not the same as “the pursuit of happiness.”

Prior to the signing of the Magna Carta, it was sometimes the practice for someone to be arrested and jailed for an indefinite period of time before charges were actually preferred, or trial held. Today’s provisions in law for habeas corpus and the right to a speedy trial (6th Amendment) have their origins in the Magna Carta. It is my sense that “liberty” in this context (that is, of the 5th and 14th Amendments) means that no person shall be imprisoned without due process. Put another way, then, the 5th and 14th Amendments provide that no person shall be put to death, imprisoned, or have their property taken from them without due process of law. Clearly, none of these situations applies in the case of same-sex unions; and so, to me, Judge Downing’s ruling makes no sense.

However, let me try to argue a bit for the other side. First, among the meanings of “liberty” found at, we find:

1. The condition of being free from restriction or control.

2. The right and power to act, believe, or express oneself in a manner of one's own choosing.

3. Freedom from unjust or undue governmental control.

Furthermore, from the discussion of due process at the site mentioned above comes a distinction also not immediately obvious: “due process” can be further divided to “procedural due process and substantive due process. The former, concerning itself with “how” a law is enforced, asks questions such as:
+ Is a law too vague?
+ Is it applied fairly to all?
+ Does a law presume guilt?
Substantive due process considers why a law is enforced; and here is where the question of its constitutionality comes into play.

Does a state law prohibiting the recognition of same-sex unions as marriages constitute “unjust or undue governmental control?” In a way, this is asking the question of what is, and is not, in the best interests of the state to regulate – and here we encounter another part of what Judge Downing is reported to have said in his ruling: that preventing same-sex marriages is not in the best interests of the state.

Here’s the Point

A judge is not supposed to have the power to determine what is in the best interests of the state. This power resides in the people themselves; and they act through their representatives in the state legislature, and in the executive branch. If the legislature enacts a measure, and the executive signs it into law, the role of the court with regard to the law is to ensure its constitutionality; and that it is applied equally and with fairness – and nothing more! But the increasing level of judicial activism, and its acceptance (evidenced by the passivity of the masses) is the true danger to our system of government – and as much, or more, of a threat than the issue being advanced by this activism (i.e., same-sex “marriages”).

And so, the “Paul Revere” moment. We need our legislators, and especially those in the U.S. Senate and House of Representatives, to craft and enact suitable measures (either in law, or as an amendment to the U.S. Constitution) to bring about a limitation on the power of the judiciary to overturn state laws which have been duly and properly enacted. Let’s put our efforts here; and, if we’re successful, there will be no need for a federal “Marriage Amendment” to the Constitution.

To arms! To arms! The judges are coming!