Friday, July 28, 2006

Where Are the Activist Judges When You Need Them?

Back from the beach ....

Where Are the Activist Judges When You Need Them?

“While same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have declared it.” -- Washington state Supreme Court Justice Barbara A. Madsen in the majority opinion ruling that there was no constitutional right for people of the same sex to marry each other.

Imagine just for a moment how different our nation would be if in 1954 the justices charged with rendering a decision on Brown v. Board of Education had applied Madsen’s flawed logic to the issue before them: the desegregation of public schools. It might have sounded something like this: “While desegregation of public schools may be the law at a future time, it will be because the people declare it to be, not because we’re willing to stick our necks out.”

Yeah, right. Does anyone for a moment imagine that if that important issue had been offered up as a ballot initiative it would have been anything other than soundly defeated by the “majority opinion?” Does anyone think local legislators dependent on that majority opinion for re-election would have supported legislation overturning segregation? Until just what “future time” would African-American children seeking equal access to public education have had to wait until “the people declared it to be?”

Hate to say it, but I think we’d still be waiting.

We’d still be waiting and in 2004 we would not have celebrated the fiftieth anniversary of the tremendous gift America received from the activist judges who dared to overrule majority prejudice in favor of minority rights with the Brown vs. Board of Education decision. I remember watching with bewilderment on that May 2004 morning the live CNN feed from Topeka and listening to President Bush speaking from a red-white-and-blue bunting draped platform saluting the 1954 decision as a courageous step forward for all Americans while the “crawl” under the live footage read “Bush reiterates call for constitutional amendment to ban gay marriage” – and soon we got to hear another diatribe from our President launched at “activist judges who dare to overrule majority opinion on this important issue.” Hello!

As an American citizen I’m tired of seeing my Constitution selectively applied to offer equal protection to only some American families rather than guarantee liberty and justice for all. As a priest and pastor I’m tired of seeing my Holy Scriptures selectively interpreted to support bigotry and bias rather than proclaim good news to the poor, release to the captive and freedom to the oppressed.

Majority opinion has been wrong in the past and it will be wrong in the future and it is wrong today on the issue of marriage equality for same-sex couples seeking the equal protection guaranteed their families and their relationships by the Constitution. Majority opinion may today hold that marriage should be defined as between a man a woman but let’s not forget that not so long ago that same majority opinion held that marriage should be defined as between a white man and a white woman.

Let’s not forget that there were religious leaders who used biblical texts to justify segregation and declared that interracial marriage was an abomination to God and contrary to the clear truth of scripture.

Let’s not forget that it took an activist judiciary to over-rule majority opinion in favor of equal rights.

And let’s hope and pray that there are still those willing to go and do likewise.


Anonymous said...


You sound too defensive.


Bruno said...

Hat tip to RH Factor. On what you are talking about, having to wait till over 630 million people agree is insane. For the judicial branch to hand the interpretation of the founding documents over to the majority of the populace (who by the way have never read them) is insane.
Great video at this link, says a lot in one min.


revsusan said...

Margaret ... I'm not defensive ... I'm pissed.

Suzer said...

My thoughts exactly! Living in the lovely state of Jahwjuh (that's Georgia!), I can definitely testify to the fact that segregation would be alive and well in the South today (if not elsewhere) if it weren't for those "activist" judges. I keep asking people -- if "the people" had decided on civil rights issues in the 50's and 60's, would African Americans have enjoyed the strides they have? Not that there isn't still work to be done in that regard, but I almost certainly think that racism and segregation would not have changed much over the last 60 years if "we the People" had made the decision. Hooray for "activist" judges!

D. C. said...

Susan —

1. You have to remember that as a purely pragmatic matter, courts can't get too far out in front of public opinion. Otherwise, the brute fact is that that the courts start to lose credibility, and in our system of divided government, credibility is pretty much all they have going for them. Recall that when some southern states tried to defy the courts' desegregation orders, it was Presidents Eisenhower and Kennedy, not Chief Justice Warren, who had the authority to send in federal troops to enforce the orders. It was courageous of both the Court and the presidents to do what they did, because public opinion was far from unanimous in support of it. Fifty years previously, one or both institutions might well have demurred.

2. For better or worse, American public opinion hasn't yet come around to accepting (i) the hypothesis that sexual preference is in-born, not chosen; and (ii) the assertion that sex outside of heterosexual marriage can be holy instead of per se sinful. I strongly suspect that such acceptance is inevitable (see, but it's going to take time.

Anonymous said...


A considered choice of words