The myth of Activist Judges

As somebody who gets 100% of their entertainment from online sources, I also get 100% of my news from online sources. One source of news I use is Yahoo.com, which features some of the most diverse and progressive articles written on a mainstream web news source. The comments section of these news articles, however, seems to be made up of some of the most staunch neo-conservative and fundamentalist christian people on the internet outside of forums dedicated to those political/religious affiliations. While homosexual marriage seems limited to homosexual rights, Transgendered people are caught in the crossfire because many states that have denied marriage to homosexuals have also denied marriage to transgenders and transsexuals.

Within the last week, a Judge in Florida issued a ruling that essentially annulled the anti-homosexual marriage law passed in Florida sometime in 2008. This judge issued his ruling with the statement,

"The preliminary injunction now in effect thus does not require the clerk to issue licenses to other applicants, but as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the clerk to issue such licenses."

This judge is essentially saying it is not the injunction that is requiring the state to issue gay marriage licenses, it is the US Constitution that places this requirement on the states, and that the injunction is just an order by the courts to the state of Florida to follow the Constitution's provisions.

The article written for Yahoo! News can be found here: http://news.yahoo.com/federal-judge-allows-gay-marriages-begin-across-florida-225319224.html

If one is to scroll down to the comments section, the tone towards homosexuals flips a switch. Here is a small selection of comments from that section:

"This is just plain wrong and I’m confident is sharing that none of us Christians like this federal judge making decision for us Christians down here in the south."

"One of the biggest moral mistakes in human history is to have same gender individuals believe they can marry.

Genesis 2: 24

Same gender unions lack the tools to have or demonstrate proper relations.........."

"Does the 14th amendment cover father son marriage? See how the liberals havent covered all their lies. Never was gay so called marriage ever thought a right denied. And just as the 14th amendment DOESNT cover father son marriage, NEITHER does it over gay so called marriage. "

These fundamentalist christian comments are common in the Yahoo! news comments section. However, when it comes to articles written when a federal judge issues an injunction within a state to respect the constitutionally guaranteed right to equal marriage rights, there is one comment that pops up every time:

"The people voted and spoke, and did so very wisely.

Then another activist judge, with no understanding of The Law or our US Constitution comes along to be a spotlight whore."

These types of comments are common on homosexual marriage injunction articles, and not just on Yahoo! News articles, but all over the internet. Lets take a moment to examine the claim that judges that place injunctions on states to respect homosexual marriages, and by extension transgendered marriages, are activist judges.

First we must dissect the term Activist Judge. While such a term has yet to be defined in a denotative way, it is obvious Activist Judge implies that an activist judge is using his/her power as a judge to push his/her own political or social agenda. There are, obviously, many problems with this label.

The first problem is that this name calling ignores the Supreme Court's decision on homosexual marriage, in specific its ruling on the Defense of Marriage Act (Love that name by the way; it implies that homosexuals are some how attacking marriage by wanting to get married). If you happen to be out of the loop on that, SCOTUS ruled 5 to 4 (divided across party lines, obviously) that the Defense of Marriage Act was an unconstitutional law.

Those who call federal judges who place injunctions on states Activist Judges are ignoring the Precedent system the courts use. In america, all federal courts are actually assistant courts to the Supreme Court (see the origins of lower courts during America's early history), which means that any rulings the Supreme Court makes are precedents for the affiliated lower federal courts. If you are unfamiliar with precedents, precedents are simply a system in which lower courts are expected to maintain consistency with higher courts by taking previous rulings as preceding rulings to the challenge at hand. If, for example, the Supreme Court rules that laws limiting speed limits to 50mph are unconstitutional, the Supreme Court is also implying that its lower courts hold that ruling as a precedent to further challenges to speed limit laws. This would mean any time a lower federal court receives a challenge to speed limit laws after that ruling, they are expected to respect the Supreme Court ruling as a preceding ruling and must rule in favor of the precedent or push the challenge up to the Supreme Court.

In the situation of homosexual marriage, SCOTUS' decision on the Defense of Marriage Act serves as a precedent for challenges to state level homosexual marriage bans, essentially requiring state level judges to rule in favor of homosexual marriage under the precedent of SCOTUS' ruling on DOMA. Even if a judge believes a state ban on homosexual marriage is somehow constitutional, their hands are tied by the precedent of SCOTUS' ruling on DOMA. A federal state judge must rule in favor of homosexual marriage. So far, the best thing a federal judge has been able to do for anti-homosexual marriage proponents addressing challenges to their state-level bans on homosexual marriage was to push the challenge to the Supreme Court to get a direct ruling on whether or not states are required to follow the ruling on DOMA as a generic ruling on homosexual marriage bans. However, as a side note, since SCOTUS has refused to revoke marriage licenses that homosexuals have as they move from a state that allows homosexual marriage to one that does not, it is my personal opinion that when that challenge hits SCOTUS they will quickly rule that states must respect the constitutionally guaranteed right to equal marriage rights.

In addition to ignoring the precedent system, the assertion that judges that rule in favor of homosexual marriage are activist judges is a misnomer. While I recognize there may be specific, rare incidents of judges ruling outside the law to serve their own political agenda, this is not the case on homosexual marriage rulings. In this case, a precedent is in place which implies the right to homosexual marriage is a constitutionally guaranteed right.

The point is ALL judges are activist judges; all judges are attempting to push a singular political opinion: The Constitution is the highest law in the land. All judges are activist judges pushing for the constitution, and that is not only their job, it is what the constitution says is SCOTUS' only purpose, and by extension the only purpose of its lower courts.

-By Taylor Cogdill

Amare atque Pace, Semper.