Will Activist Judges Just Please Come the Heck out of Their Gay Closets?
Dave Muskera, M.A.
January 27, 2008
"Activist Judges". The sound or sight of this phrase sets my teeth on edge. What the hell does it mean? What is its opposite!? An in-activist judge? A judge asleep on the bench? Of course, anyone who reads or is otherwise exposed to the mainstream media has heard this phrase used over and over as if it had some real substantial meaning. Media pundents and others with an agenda (and most often of a single political persuasion) beat the activist judge drum every time a judge (from state levels all the way up to the US Supreme Court) makes a decision with which they disagree. But surely, anything said so often should convey something of substance. Not just disagreement. Right? Well, I guess it does in some ways - though there are those who argue that the actual measure of its substance is more akin to the substantialness of the air in a hot air balloon. And you might also note that the term is almost always used in a pejorative sense. It is not typically a compliment.
If you Google the term "activist judges" (which Iīm going to abbreviate as AJs) you get upwards of 188,000 hits. Thatīs a considerable number, one that suggests itīs a hot topic, at least on the Internet. However, whatīs even more interesting is that if you ask for the hits to be filtered to those having any of the words/phrases "gay", "homosexual" or "sexual orientation" in them, you still get 147,000 hits. So, about 78% of the hits on AJs somewhere and somehow touch on gay related matters. Thatīs astounding! Does that seem odd to you?
Well, maybe not. Surely most have noticed that, in the media, about the only time we hear the AJs term being bandied about is when some judge makes an unpopular and favorable ruling about gay marriage or some other gay rights issue. It does seem safe to speculate, even conclude - that the great majority of debate and discussion about what AJs do and donīt do - centers on how they handle the gay question. Itīs rare to hear a judge kicked around with the AJ label in any other judicial decision making arena. It does happen, just not very often in comparison with the questions about legal rights for gays. Iīm surprised that some on the far-right havenīt suggested that all activist judges must be gay and should just come the heck out of the closet.
A bit more Google sleuthing and youīll also discover that if you combine "liberal" with the AJ phrase, you get 16,100 hits - but only 2,860 hits if you pair the word "conservative" with it. Now Iīm not going to spend the rest of the week pouring over all or even a sample of these hits so I really canīt say much about their content. Itīs just another interesting set of numbers and percentages. Nearly 80% of information hits on activist judges have some connection to "gay" and there are 5.5 times more combinations of the word liberal with the AJ term than there are for the word "conservative" What might all this mean - if anything? Are only "liberal" judges activist? Is that a bad thing?
So where does this leave us? If I thought it would do much good, I would encourage those who accuse judges of being "activists" and not strictly interpreting the Constitution "as written" to go spend some time and re-educate themselves on the role of the Judiciary in US Government with itīs deliberately and wisely built in "checkīs and balances." Think about a government that early-on recognized the need to protect individuals and created The Bill of Rights mostly as a defense for the minority against the tyranny of the majority. Think long and hard about a Constitution that, with much forethought, gave power and authority to the Judiciary - charging it with the job (among other things) of protecting individual citizens from the whims of popular sentiment and giving it the ability to overturn, when necessary, legislative and even presidential decisions. The annals of Congress are full of legislative blunders and bad laws. We are well familiar with cumbersome and vague legislation passed in the heat of the moment and often for reasons that fall well short of the peopleīs best interest. Seems to me that the Constitution almost requires a judge to be an "activist". To do otherwise is to see the Constitution as a static document, frozen in time and incapable of guiding a government into the 21st Century.
Without an activist judiciary much of the bad law, ill-serving traditions and stuck-in-the- mud precedents would still be on the books. There would be no evolution of legal thought. For examples, without an activist judge, the state of Virginia would still be outlawing interracial marriage. Without activist judges, de jure racial segregation in our school systems would have stood unopposed for many more years than it did. Without activist judges, the private consenting sexual behaviors of gay US citizens would have continued to be illegal in many of the States. Without activist judges, women would not have as much say-so over their own bodies as they do today. Without judicial activism, we would be stuck at the level of Old Testament Mosaic Law. I think it unlikely anyone familiar with the details of those laws would make much of a fuss about the activist judge whose decision overturned the law and tradition of punishing adultery with death by stoning.
Itīs patently obvious that slamming judges with the AJ label and talking about stopping a "runaway judiciary" comes mostly from those who bitterly disagree with this or that decision they have rendered. And, for the most part, itīs anti-gay groups like Focus on the Family and Concerned Women of America who most rabidly bring forth this hue and cry. Here more recently for example, in Iowa, a judge overturned the states ban on gay marriage. A social conservative group, enraged by this action, is now attempting to have the judge "impeached" for "overstepping" his authority. Itīs unlikely to happen, but in the meantime, they are almost burning crosses on his lawn.
I think some of the conservative name callers might do well to take a moment and reflect on just why it is that so many judges (and more every year) find it difficult to uphold the constitutionality of laws banning gay marriage or those ripping away protection for gays against the rampant prejudice still found in our "free" country. Could it be that these activist liberal judges canīt sleep at night knowing that our government - promising "liberty and justice for all" canīt even seem to find a place at the table for its gay citizens?
Letīs face it, it may be that activist judges are the only ones doing their job. While I might disagree with some of their decisions and scratch my head in dumfounded disbelief at what appears to me to be stupidity or ignorance, I cannot think of any system better than the one we have. It has kept this country afloat for well over 200 years. Yes, there are some holes in the ship of state, but I have every confidence that activist judges are at work to plug up the leaks. Let them do their work and applaud the system, if not their individual efforts.
If you Google the term "activist judges" (which Iīm going to abbreviate as AJs) you get upwards of 188,000 hits. Thatīs a considerable number, one that suggests itīs a hot topic, at least on the Internet. However, whatīs even more interesting is that if you ask for the hits to be filtered to those having any of the words/phrases "gay", "homosexual" or "sexual orientation" in them, you still get 147,000 hits. So, about 78% of the hits on AJs somewhere and somehow touch on gay related matters. Thatīs astounding! Does that seem odd to you?
Well, maybe not. Surely most have noticed that, in the media, about the only time we hear the AJs term being bandied about is when some judge makes an unpopular and favorable ruling about gay marriage or some other gay rights issue. It does seem safe to speculate, even conclude - that the great majority of debate and discussion about what AJs do and donīt do - centers on how they handle the gay question. Itīs rare to hear a judge kicked around with the AJ label in any other judicial decision making arena. It does happen, just not very often in comparison with the questions about legal rights for gays. Iīm surprised that some on the far-right havenīt suggested that all activist judges must be gay and should just come the heck out of the closet.
A bit more Google sleuthing and youīll also discover that if you combine "liberal" with the AJ phrase, you get 16,100 hits - but only 2,860 hits if you pair the word "conservative" with it. Now Iīm not going to spend the rest of the week pouring over all or even a sample of these hits so I really canīt say much about their content. Itīs just another interesting set of numbers and percentages. Nearly 80% of information hits on activist judges have some connection to "gay" and there are 5.5 times more combinations of the word liberal with the AJ term than there are for the word "conservative" What might all this mean - if anything? Are only "liberal" judges activist? Is that a bad thing?
So where does this leave us? If I thought it would do much good, I would encourage those who accuse judges of being "activists" and not strictly interpreting the Constitution "as written" to go spend some time and re-educate themselves on the role of the Judiciary in US Government with itīs deliberately and wisely built in "checkīs and balances." Think about a government that early-on recognized the need to protect individuals and created The Bill of Rights mostly as a defense for the minority against the tyranny of the majority. Think long and hard about a Constitution that, with much forethought, gave power and authority to the Judiciary - charging it with the job (among other things) of protecting individual citizens from the whims of popular sentiment and giving it the ability to overturn, when necessary, legislative and even presidential decisions. The annals of Congress are full of legislative blunders and bad laws. We are well familiar with cumbersome and vague legislation passed in the heat of the moment and often for reasons that fall well short of the peopleīs best interest. Seems to me that the Constitution almost requires a judge to be an "activist". To do otherwise is to see the Constitution as a static document, frozen in time and incapable of guiding a government into the 21st Century.
Without an activist judiciary much of the bad law, ill-serving traditions and stuck-in-the- mud precedents would still be on the books. There would be no evolution of legal thought. For examples, without an activist judge, the state of Virginia would still be outlawing interracial marriage. Without activist judges, de jure racial segregation in our school systems would have stood unopposed for many more years than it did. Without activist judges, the private consenting sexual behaviors of gay US citizens would have continued to be illegal in many of the States. Without activist judges, women would not have as much say-so over their own bodies as they do today. Without judicial activism, we would be stuck at the level of Old Testament Mosaic Law. I think it unlikely anyone familiar with the details of those laws would make much of a fuss about the activist judge whose decision overturned the law and tradition of punishing adultery with death by stoning.
Itīs patently obvious that slamming judges with the AJ label and talking about stopping a "runaway judiciary" comes mostly from those who bitterly disagree with this or that decision they have rendered. And, for the most part, itīs anti-gay groups like Focus on the Family and Concerned Women of America who most rabidly bring forth this hue and cry. Here more recently for example, in Iowa, a judge overturned the states ban on gay marriage. A social conservative group, enraged by this action, is now attempting to have the judge "impeached" for "overstepping" his authority. Itīs unlikely to happen, but in the meantime, they are almost burning crosses on his lawn.
I think some of the conservative name callers might do well to take a moment and reflect on just why it is that so many judges (and more every year) find it difficult to uphold the constitutionality of laws banning gay marriage or those ripping away protection for gays against the rampant prejudice still found in our "free" country. Could it be that these activist liberal judges canīt sleep at night knowing that our government - promising "liberty and justice for all" canīt even seem to find a place at the table for its gay citizens?
Letīs face it, it may be that activist judges are the only ones doing their job. While I might disagree with some of their decisions and scratch my head in dumfounded disbelief at what appears to me to be stupidity or ignorance, I cannot think of any system better than the one we have. It has kept this country afloat for well over 200 years. Yes, there are some holes in the ship of state, but I have every confidence that activist judges are at work to plug up the leaks. Let them do their work and applaud the system, if not their individual efforts.