# Gay marriage (and beyond): How real are the "judicial fiat" fears? **URL:** \ **Category:** Great Debates\ **Created:** [February 24, 2004, 1:33am UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802 "2004-02-24T01:33:30Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Priam](https://avatars.discourse-cdn.com/v4/letter/p/77aa72/32.png) [@Priam](https://boards.straightdope.com/u/Priam)\ **Post date:** [February 24, 2004, 4:19pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/21 "2004-02-24T16:19:29Z")
> [@Bricker](#): > > Lawrence did NOT follow previous predecent: it explicitly overruled Bowers v. Hardwick, a case that declared precisely the opposite of Lawrence’s holding. Using precedents, IIRC, based on cases that preceded _Bowers v. Hardwick_ like _Griswold_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2004, 4:26pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/22 "2004-02-24T16:26:09Z")
> [@Priam](#): > > Using precedents, IIRC, based on cases that preceded _Bowers v. Hardwick_ like _Griswold_. Griswold’s principles were arguably applied in Lawrence. But Griswold never explicitly addressed consensual sodomy. Bowers did. And when Bowers was decided, Griswolds’ reasoning was considered by the Court to be inapplicable to the issue of sodomy. In other words, Griswold did not support a Lawrence result nearly as strongly as Bowers rejected it. ---
**Author:** ![plnnr](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@plnnr](https://boards.straightdope.com/u/plnnr)\ **Post date:** [February 24, 2004, 4:29pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/23 "2004-02-24T16:29:01Z")
I always thought it was interesting that Mr. Justice Powell said in later life that he was wrong in his decision in Bowers v. Hardwick, and being that he was the “swing” vote his change of heart would have made the outcome different. Interesting how one’s reasoning can change over time - I wonder if Taney ever had a change of heart over the Dred Scott decision. ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 24, 2004, 4:59pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/24 "2004-02-24T16:59:46Z")
i think **Polycarp** has it right. any case that goes against what someone thinks is a good idea is called by that person an instance of “judicial activism”. i doubt very much that mr. bush is familiar with the ma constitution and its case law and precedents, so what gives him the qualification to call it judicial activism is beyond me. as far as those who say it is based on the process, i have to ask if you think justice scalia was not called a judicial activist for his decisions in _texas v. johnson_ and _united states v. eichman_. that certainly blew in a shitstorm, and he’s the posterboy for strict constructionism. something else i feel like noting is that mr. bush today essentially called the current scotus “activist judges”. in his speech supporting an amendment to ban gay marriage, he expressed fear that the federal DOMA would be overturned by “activist judges”, and i don’t know anyone who follows these things that believes that case wouldn’t get to the high court. ---
**Author:** ![James\_Madison](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@James\_Madison](https://boards.straightdope.com/u/James_Madison)\ **Post date:** [February 24, 2004, 5:14pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/25 "2004-02-24T17:14:32Z")
> [@](#): > > think Lawrence v. Texas was rather inevitable based on previous judicial rulings Priam, Bricker already beat me to the proper reply but he is correct! If you read Justice Scalia’s dissent in Lawrence, then you would realize the U.S. Supreme Court was not following prior precedent since they overturned Bowers v. Hardwick. Additionally, Scalia would argue Lawrence was an example of Judicial activism as well as not following precedent. The majority created a new scope of review under the Due Process Clause of the Fourteenth Amendment and Scalia scolded them for it. The majority used a “rational basis” level of review in the case under the Due Process clause and harassed the majority because it had not been done before in analyzing cases of this kind. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 24, 2004, 6:28pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/26 "2004-02-24T18:28:13Z")
> [@Ramanujan](#): > > as far as those who say it is based on the process, i have to ask if you think justice scalia was not called a judicial activist for his decisions in _texas v. johnson_ and _united states v. eichman_. that certainly blew in a shitstorm, and he’s the posterboy for strict constructionism. I don’t think so. After all, there _is_ a free speech clause in the constitution, and it has to mean something. Unlike many of the cases listed in this thread, there is a clear textual basis in the Constitution under which to invalidate flag-burning bans. ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 24, 2004, 7:40pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/27 "2004-02-24T19:40:24Z")
> [@Dewey Cheatem Undhow](#): > > I don’t think so. After all, there _is_ a free speech clause in the constitution, and it has to mean something. Unlike many of the cases listed in this thread, there is a clear textual basis in the Constitution under which to invalidate flag-burning bans. but that’s not really the point. the point is, if the government decided to make the southern baptist church the official church of the united states, and the courts struck it down, someone would decry it as “judicial activism”. as for flag-burning, there is at least [someone](http://vftg.8m.com/vw062599.htm) who called it activism. i’m sure there are plenty more where this came from, and i’m not sure if there’s interest in me finding more. but, a quote: > [@](#): > > The Supreme Court, in a classic example of wrongheaded fuzzy-wuzzy judicial liberalism, declared that laws prohibiting the desecration of the flag were in violation of the 1st Amendment. The truth in this proposition can be gauged by asking yourself one simple question: Would the people who wrote the Constitution agree that the 1st Amendment was designed to prevent the government from stopping flag burnings? My own opinion is that Washington would have tossed a flag burner in the pokey, and Adams would have thrown away the key. Answering “yes” to the question above only makes sense if you believe that the Founders also meant to protect nude dancing and swearing in public. The fundamental purpose of the 1st Amendment’s protection of “speech” is to ensure that government is not able to suppress political dissent. That is literally the only purpose it serves. i tend to take the phrase with a grain of salt, especially coming from people who have absolutely no knowledge of the laws involved. to me, it seems that the more support something that is unconstitutional has, the more likely it is to be declared judicial activism. that doesn’t mean that the constitution allows it. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 24, 2004, 8:09pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/28 "2004-02-24T20:09:33Z")
> [@Ramanujan](#): > > but that’s not really the point. the point is, if the government decided to make the southern baptist church the official church of the united states, and the courts struck it down, someone would decry it as “judicial activism”. Only if you’re using **Polycarp** ’s definition of judicial activism, which, amusing as it is in an Ambrose Bierce kind of way, isn’t really a terribly useful or accurate description of the phrase. I’ll agree that the term is abused, though. The disconnect between the last two sentences of the person you quoted and the rest of his diatribe is staggering. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 24, 2004, 8:13pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/29 "2004-02-24T20:13:48Z")
> [@Ramanujan](#): > > but that’s not really the point. the point is, if the government decided to make the southern baptist church the official church of the united states, and the courts struck it down, someone would decry it as “judicial activism”. Strawman. But so what if they did? They’d be demonstrably wrong. > [@](#): > > as for flag-burning, there is at least [someone](http://vftg.8m.com/vw062599.htm) who called it activism. Just because some people misuse a term, does not mean that the term has no meaning. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [February 24, 2004, 8:26pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/30 "2004-02-24T20:26:05Z")
> [@](#): > > After all, there is a free speech clause in the constitution, and it has to mean something. But is burning the flag “speech”? Not according to [dictionary.com](http://dictionary.reference.com/search?q=speech). So maybe what the free speech clause means is subject to interpretation, hmmm? Which means that, by extension, the whole document is subject to review and interpretation. I think that’s what the Founding Fathers intended and why they set the system up with “apolitical” review built in. ---
**Author:** ![Ramanujan](https://avatars.discourse-cdn.com/v4/letter/r/51bf81/32.png) [@Ramanujan](https://boards.straightdope.com/u/Ramanujan)\ **Post date:** [February 24, 2004, 9:13pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/31 "2004-02-24T21:13:38Z")
> [@John Mace](#): > > Just because some people misuse a term, does not mean that the term has no meaning. i guess what i’m trying to say is that the _majority_ of people misuse the term. i suppose this is not equivalent to the majority of the uses of the term being misuses, and i concede that i know to what you and, say, **Dewey** are referring when you say it. but for bush to use the term to apply to massachusetts law when he is in no authoritative position on massachusetts law, and perhaps even more grossly, to claim that “activist judges” _might_ strike down DOMA, without even knowing what reasoning they might use to do so, definitely erodes any meaning the term might have in its common public use. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 24, 2004, 9:39pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/32 "2004-02-24T21:39:19Z")
> [@Ramanujan](#): > > i guess what i’m trying to say is that the _majority_ of people misuse the term. i suppose this is not equivalent to the majority of the uses of the term being misuses, and i concede that i know to what you and, say, **Dewey** are referring when you say it. OK. And I’d certainly agree that judicial decisions form a continuum, and it’s impossibe to objectively draw a line and say: “Activism on this side, non-activism on the other side”. But that doesn’t mean one should not try to minimize judicial activism by striking at those decisions on the far end of the continuum. > [@](#): > > but for bush to use the term to apply to massachusetts law when he is in no authoritative position on massachusetts law, and perhaps even more grossly, to claim that “activist judges” _might_ strike down DOMA, without even knowing what reasoning they might use to do so, definitely erodes any meaning the term might have in its common public use. I dunno. MA did not have a DOMA, but if it did, I can’t imagine that the MA SC would have reached a different opinion than it did. Translating that to the SCotUS is not that much of a stretch, is it? Considering that we recently had a SC decision (O’Conner in the U of Mich AA case) stating that justice might be different 25 years from now than it is now, I don’t know what to expect from that court anymore. I oppose the gay marriage amendment. But I can see the SCotUS striking down the DOMA on the same grounds that the states might strike down similar state laws. If they did, I would not necessarily call it “judicial activism”-- ie, at the far end of the continuum. But I **do** see the MA SC decision, which gives the people of MA no reasonable time to consider a constitutional solution, to be at least a bit on the “activist” side of that hard-to-define line. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 24, 2004, 9:49pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/33 "2004-02-24T21:49:41Z")
> [@grem0517](#): > > But is burning the flag “speech”? Not according to [dictionary.com](http://dictionary.reference.com/search?q=speech). So maybe what the free speech clause means is subject to interpretation, hmmm? Which means that, by extension, the whole document is subject to review and interpretation. I think that’s what the Founding Fathers intended and why they set the system up with “apolitical” review built in. No one has claimed that the constitution isn’t “interpreted;” we aren’t snake-handling Biblical fundamentalists here, after all. What strict constructionists demand is a textually clear commitment to a constitutional prohibition before striking a law down; that doesn’t mean that a given phrase is to be read with such painful literalness as to whittle it down to nothingness. Historical context and the drafter’s intention comes into play as well. Take your speech example. If I march with a political banner, that isn’t “speech” in the spoken-word sense, either. But it’s well understood from the history and debate over the phrase that the free speech clause was most clearly meant to protect dissenting political messages. It is therefore consistent with the text to apply the free speech clause to political banners (and, indeed, flag-burning). That isn’t the case with the decisions noted above. Nowhere in the constitution is there a textually clear commitment to sodomy, or abortion, or contraception, or privacy in general (searches and seizures excepted). Indeed, the courts have admitted as much – hence the recourse to concepts like “emanations and penumbras.” That’s the sort of thing we’re talking about when we say “judicial fiat” or “judicial activism” – decisions that simply have no constitutional hook (or, more precisely, have a throwaway, meaningless hook like “substantive” due process). I can disagree with a lot of the court’s jurisprudence on matters of speech, or religion, or other matters clearly found in the text, without calling the court activist. There is room for differing views of interpretation of extant text. Where I object, and what I mean when I use the “activist” label, are those cases that have no such anchor, and where the court literally is just making shit up. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 24, 2004, 9:51pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/34 "2004-02-24T21:51:42Z")
> [@John Mace](#): > > But I **do** see the MA SC decision, which gives the people of MA no reasonable time to consider a constitutional solution, to be at least a bit on the “activist” side of that hard-to-define line. Because, of course, it’s just so activist to think that “equal treatment under the law” should be taken to mean “equal treatment under the law.” And not giving the people of MA five years to clarify that all they ever meant was “equal treatment under the law except for faggots” clearly tips the balance. Activist! No doubt about it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2004, 10:13pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/35 "2004-02-24T22:13:14Z")
> [@Gorsnak](#): > > Because, of course, it’s just so activist to think that “equal treatment under the law” should be taken to mean “equal treatment under the law.” And not giving the people of MA five years to clarify that all they ever meant was “equal treatment under the law except for faggots” clearly tips the balance. Activist! No doubt about it. It is activist. It mandates a dramatic change in the application of the law, one which the opinion itself acknowledges is vast: > [@](#): > > Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries. But, frankly, it’s their call to make. Although it’s activist, it’s up to the people of Massachusetts to accept or change the decision. They can amend the constitution, and restore the previously understood definition of marriage, or they can accept the change. While I would have preferred to see this move come from the legislature, as befits our notions of self-governance, at least it’s coming properly from the state, and not the federal level. So it’s perfectly proper. But even the judges writing the opinion acknowledge the great change wrought by their work - so please don’t sarcastically suggest this decision isn’t an activist one. It is. - Rick ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 24, 2004, 10:31pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/36 "2004-02-24T22:31:34Z")
> [@Bricker](#): > > It is activist. It mandates a dramatic change in the application of the law, one which the opinion itself acknowledges is vast: Certainly this is not the going definition of ‘activist’ in the sense being used in this thread. Loving and Brown mandated dramatic changes in the application of the law. And so, I am sure, did numerous other decisions with which I’m utterly unfamiliar, many of which adhered to the most rigourous interpretation of the relevant constitutions anyone could want. That doesn’t make a decision activist. ‘Activist’ in the relevant sense must refer to the legitimacy of the grounds for the decision, and not to the scope or nature of the change mandated. As to the length of the stay of the decision, I fail to understand why it is more “activist” to give a legislature less time to remedy a conflict between statute and constitution rather than more time. Either a decision is grounded in the constitution or it is not. Staying it for x months rather than y months doesn’t change that in the least. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 24, 2004, 10:35pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/37 "2004-02-24T22:35:38Z")
> [@Gorsnak](#): > > Because, of course, it’s just so activist to think that “equal treatment under the law” should be taken to mean “equal treatment under the law.” And not giving the people of MA five years to clarify that all they ever meant was “equal treatment under the law except for faggots” clearly tips the balance. Activist! No doubt about it. Here’s the deal. The exact same argument could be used by the MA SC to force polygamy on the state. And you can bet your bottom dollar that there would be MA constitutional amendment banning polygamy that would fly thru the legislature and get approved in the minimum amount of time possible (I think the process takes about 2 yrs in MA due to the req’t that two successive legislatures have to approve it). I’m not as certain that this will happen for gay marriage in MA, but it is a **distinct** possibility. The court allowed 6 months for the legislature to deal with the gay marriage issue. There is no reason not to allow it 2 years instead, so that the legislative process can work. Had we been talking about matters of life and death, or the ability of people to earn a livelihood, then quicker action would be appropriate. The legislature wanted to use civil unions as an interim solution-- something that would address the immediate concerns of gays, while allowing the people to work out this new concept of gay marriage. Instead, the court forced a particular decision on the state. And, I might add, a decision that has a reasonable possibility of being overturned by a constitutional amendment in the near future. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [February 24, 2004, 10:43pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/38 "2004-02-24T22:43:02Z")
> [@John Mace](#): > > Had we been talking about matters of life and death, or the ability of people to earn a livelihood, then quicker action would be appropriate. For some people it _is_ a matter of life and death, or the ability to earn a livelihood. Lesbian couple, X has lucrative job with good benefits, but her employer extends benefits only to spouses, and not domestic partners or whatever term happens to be in vogue. Y has 6-year old daughter with leukemia. If they can marry, the daughter lives. If they can’t, she dies. You may think 2 years is an insignificant time to wait, I guess, but you’ll pardon me for thinking that X and Y won’t agree with you. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 24, 2004, 11:38pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/39 "2004-02-24T23:38:28Z")
> [@Gorsnak](#): > > For some people it _is_ a matter of life and death, or the ability to earn a livelihood. > > Lesbian couple, X has lucrative job with good benefits, but her employer extends benefits only to spouses, and not domestic partners or whatever term happens to be in vogue. Y has 6-year old daughter with leukemia. If they can marry, the daughter lives. If they can’t, she dies. Firstly, I don’t accept your premise that the gov’t should be deciding when companies offer or don’t offer benfits to spoused or partners or whatever. Secondly, within the current legal framework, civil unions would cover your “lifeboat” scenario. But these “lifeboat” scenarios are rarely, if ever, a good basis for law. If the saving of the 6-yr-old’s life is a good that must be achieved, then one could make an argument for society to pay for this regardless of whether the parent is employed, if the employer offers benefits to anyone, or if the parent is married, gay, straight, or trisexual. The law, itself, is not the source of the life/death situation. And that’s all that really matters. We are not discussing a law which \*\*actively \*\* infringes on a person’s life or livelihood. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [February 24, 2004, 11:56pm UTC](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802/40 "2004-02-24T23:56:50Z")
> [@John Mace](#): > > Firstly, I don’t accept your premise that the gov’t should be deciding when companies offer or don’t offer benfits to spoused or partners or whatever. Isn’t that what the Ohio law (which, IIRC, is hailed as a model for such laws) does, though? And now that some of the lawyers here have peeked into this thread, what do you think of the “either-or” scenario that I mentioned in the OP? False dichotomy? Can we **ever** be at that point? What would it take for us to be at that point? [Previous page](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802.md?page=1) [Next page](https://boards.straightdope.com/t/gay-marriage-and-beyond-how-real-are-the-judicial-fiat-fears/230802.md?page=3)