# Judicial activism is a good thing, unless you disagree! And how long have we had it? **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2004, 11:14pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565 "2004-11-18T23:14:17Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 27, 2004, 5:22am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/221 "2004-11-27T05:22:59Z")
> [@Dewey Cheatem Undhow](#): > > But it is a valid basis for meeting the requirements of rational basis inquiry. And that isn’t just my opinion – that’s what the cases actually say. > > Further, I think your “social policy vs. rights and powers” analysis is just sophistry. The reach and limits of all constitutional rights are pretty much matters of social policy. You have a right to free speech, but not to commit slander or to falsely advertise. Why? Social policy reasons. Thanks, **Dewey**. Though you disagree with my position, it’s rationally set forth. This isn’t a cry of “Cite!” but simply a request – when it’s convenient, here or elsewhere, give me a leading case or two clarifying social policy as a valid basis for meeting “rational basis” inquiry – simply to improve my own knowledge of the law. (My hunch is that it’s a Brandeis opinion, but I bow to your more thorough knowledge.) I think social policy can help to shape the standards of the law, but as a constitutional test I feel it should yield to definitions of rights or of powers. Perhaps that, rather than a blatant pontification, is what I should have said. However, I do wonder whether there’s a cogent argument against my assertion of the right to marriage promulgated in _Loving_ (BTW, what is your take on the validity of that assertion?) and the application of equal protection. As for **Huerta** , his use of quotation marks around the word “marriage” as applied to homosexuals, and his obvious desire to **find** a justification for his position, rather than applying rational analysis to the issues here, plus the fact that he chose not to answer me, makes it clear that his intent here is not to debate on a level playing field. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [November 27, 2004, 6:05am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/222 "2004-11-27T06:05:22Z")
> [@Polycarp](#): > > As for **Huerta** , his use of quotation marks around the word “marriage” as applied to homosexuals, and his obvious desire to **find** a justification for his position, rather than applying rational analysis to the issues here, plus the fact that he chose not to answer me, makes it clear that his intent here is not to debate on a level playing field. You and **Elvis** seem intent on declaring victory and doing the end-zone dance based on someone’s having a life away from the board, eh? There was this holiday, see, that the Pilgrims origingated, and . . . oh forget it. Suffice to say, declare your victories in legal battle after you’ve secured them, not before, s.v.p. What was your question, again? Was it contained in this paragraph (which doesn’t contain a question mark, so forgive me if I didn’t perceive a, um, question): > [@](#): > > But either there is a right to marriage, or there is not – and Loving asserts that there is, that it is indeed a fundamental right. Now, having determined that there is, the next question is what it entails. Certainly it may be limited for reasons which have a logical basis – there may be a minimum age of consent, bigamous marriages may be prohibited, incestuous marriages may be prohibited, and rational bases can be established for these. But it would appear that one “privilege and immunity” is the right to marry the person of your choice absent a rational-basis prohibition. You may not marry a nine-year-old, your sister or grandmother, or the entire Dallas Cowboys cheerleaders squad. But you may marry the person with whom you fall in love if he or she does not fall into an exclusion. To permit this right to some people while restricting others from it is a violation of equal protection. **Bricker** has so thoroughly made the point that simply squawking “equal protection” answers nothing, that I will not attempt to succeed where he has, evidently, though through no fault of his, failed in illuminating the darkness. “Marriage” has never been defined or imagined as including same-sex couples. Thus, proving that there is a historical recognition of the right to “marriage” does almost (or perhaps, entirely) nothing to advance your cause. It is like saying that we have recognized a fundamental right to own property, then re-defining “owning property” on the fly as including owning a copyright in your own name. You can’t sneak it in through the back door. Further: did any historical “fundamental right to marriage” limit itself to “marry[ing] the person with whom you fall in love?” Wait! All the thousands of economically-motivated or state-arranged heterosexual marriages were void ab initio, because they hadn’t “fallen in love!” Finally, since you invoke _Loving_: Can you honestly put hand on heart and say that even the jurists who wrote _Loving_ meant that the “right to marriage” they were allegedly enunciating extended to homosexuals? If so, then their enunciation of the “right to marriage” is limited to the circumstances that gave rise to that case, viz., black and white men and women trying to marry each other. Or do you truly not understand the notion of “cases and controversies” – that the court can only adjudge that which is before it, so you cannot attempt to smuggle into a holding upon issue A a rule that will sneakily enshrine very different right B? In other words, you cannot play the “gotcha” game of claiming that _Loving_ comprehensively addressed and decided the issue of whether any and all forms of “marriages” (as now conveniently re-defined by you, in a manner unimaginable in that era) were a constitutional, fundamental right (incorrect, because that issue, thus framed, was not before the Court in that case), and thus “marriage” (as re-defined by you two minutes ago) cannot now be challenged, as to any group, without the state carrying the burden of proof? Also . . . point me to a single case of “gay marriage” (or GAY MARRIAGE, or _gay marriage_, for that matter, as you seem obsessively concerned with all matters typographical), that has been recognized before, oh, ten minutes ago, in jurisprudential geologic time, by anyone, and then I will apologize for my use of quotation marks to indicate the hypothetical status of an entirely-hypothetical ‘institution.’ Till then, I have no qualms about using quotation marks to indicate (as often we do, in the English language) that we are discussing something that, to date, has as much real legal or social existence or recognition as “hipogriffs” or “creation science.” By the way . . . which part of my strictly-by-the-book application of _Lemon_ (with which I disagree) did not “apply rational analysis?” Yeah. If you’ve read this thread (and I do wonder), a consistent theme has been my steadfast renunication of a need, in the first instance, to “find a justification” for state regulation as to matters upon which the Constitution simply doesn’t touch. That which is not prohibited is permitted. What an odd statement, then, for you to make regarding my supposedly-earnest efforts at such justification-finding. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 27, 2004, 7:27am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/223 "2004-11-27T07:27:57Z")
> [@Polycarp](#): > > Thanks, **Dewey**. Though you disagree with my position, it’s rationally set forth. This isn’t a cry of “Cite!” but simply a request – when it’s convenient, here or elsewhere, give me a leading case or two clarifying social policy as a valid basis for meeting “rational basis” inquiry – simply to improve my own knowledge of the law. (My hunch is that it’s a Brandeis opinion, but I bow to your more thorough knowledge.) Well, there are a bunch of cases…pretty much all the rational basis cases, in fact. All laws are passed to further a social policy, so any time a law was upheld on a rational basis standard, the court upheld the idea that furthering social policy was a valid reason for the law. > [@](#): > > However, I do wonder whether there’s a cogent argument against my assertion of the right to marriage promulgated in _Loving_ (BTW, what is your take on the validity of that assertion?) and the application of equal protection. In terms of equal protection, Loving deals with race, which is considered a suspect class, and therefore, the “strict scrutiny” test is used. Sexual orientation isn’t considered a suspect class, and rational basis is considered. As Chief Justice Warren said: > [@](#): > > In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. As for **Huerta** , his use of quotation marks around the word “marriage” as applied to homosexuals, and his obvious desire to **find** a justification for his position, rather than applying rational analysis to the issues here, plus the fact that he chose not to answer me, makes it clear that his intent here is not to debate on a level playing field. [/QUOTE] ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [November 27, 2004, 1:33pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/224 "2004-11-27T13:33:08Z")
> [@ElvisL1ves](#): > > **stratocaster** , I’m even more disappointed in this:Those who blithely toss in allegations of support of pedophilia most definitely _are_ slanderous. You need to address that remark a little more responsibly than you seem inclined to so far. I take full responsibility for my statements. Sorry, fella, this is hyper-sensitive silliness. I do not now, nor have I at any point in this thread, tried to suggest that you are a supporter of pedophiles’ rights. I simply pointed out that your particular logic could be extended to produce an undesirable conclusion in another arena. In fact, don’t let me paraphrase–this is what I said: > [@](#): > > This same (ElvisL1ves) logic could assert that anti-pedophilia laws are unconstitutional because they disproportionately impact pedophiles, singling that class of people out. “If everyone is not legally permitted to pursue the object of their sexual desire, than the laws are a de facto violation of equal protection.” “This same logic _could_ assert,” not “And Elvis clearly carries this logical extreme over into a support of pedophiles’ rights.” You see the difference? If you or anyone took it any other way, allow me to disavow you of that notion now. Frankly, it is a common practice in debates to show how a syllogism, if applied on a different front, would produce an undesirable result; if anything, this approach _assumes_ that you disagree with the unintended effect, otherwise it wouldn’t be a terribly effective method. You can believe otherwise, but my point is that this isn’t intended to disparage another’s character. > [@](#): > > Pretending to give you credit anyway, though, here goes: Given the lack of evidence to show the contrary, especially in light of the fact that you pro-discrimination advocates have abandoned legal analysis almost entirely and are now invoking your own version of social tradition instead, it’s fair enough to say that yes, it’s a given. This sort of flamethrowing isn’t constructive, ya know? I am not pro-discrimination, and if you’re really looking for something that tends toward the slanderous, this statement of yours fits the bill. I have stated I support gays’ rights in this area. Stating at the same time that the Constitution doesn’t seem to offer an equal protection argument for it may be arguable, but it is not the same as saying that gays don’t deserve this right. This sort of baseless name-calling is despicable and you ought to take responsibility for it and apologize, recognizing that it is possible for someone to state an opinion on how a process works without being a bigot. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 27, 2004, 3:51pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/225 "2004-11-27T15:51:54Z")
Please cease the weaseling. It does neither you nor the legal profession any good, especially after your earlier acknowledgment that you knew what I meant even before that imputation. That makes your statement, repeated here, that it is “my” logic a lie as well as a slander, and your demurral continued well-poisoning. Even in the alternate universe where your description of that logic were accurate, there was no enlightenment to be had in use of that illustration. But your level of credibility, both factual and personal, is entirely up to you. If that isn’t worth getting upset over, then what is? Do you think you can say whatever you want, and, if anyone objects, just tell them “Don’t be so sensitive, sheesh”? Doesn’t work that way. If you’re not “pro-discrimination”, btw, then you might stop arguing the pro-discrimination side, now that it is (or should be) clear that that is fundamentally what it is. Your objection to the term is not only “hypersensitive” (ironic, huh?) but baseless. > [@Polycarp](#): > > In terms of equal protection, Loving deals with race, which is considered a suspect class, and therefore, the “strict scrutiny” test is used. Sexual orientation isn’t considered a suspect class, and rational basis is considered. A distinction without a difference, since neither strict scrutiny nor rational basis succeeds. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 27, 2004, 5:20pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/226 "2004-11-27T17:20:42Z")
> [@John Mace](#): > > **DMC** : Do you a cite of there EVER being a SSM performed and recognized by a state in the US prior to the latest MA court decision? 1975 Two gay men in Phoenix legally obtain a marriage license and wed before the county attorney can file an injunction against them. (It is later declared void.) Also in 1975, A Boulder, Colo., county clerk issues a marriage license to a same-sex couple that tells her they’d been denied one in another county. Word spreads, and she issues licenses to about a half-dozen same-sex couples before the state’s attorney general deems the unions legally void. Until the action voiding them, they must be presumed to have been recognized. I admit that’s slim; but your question is really irrelevant anyway. “It’s always been that way” is not a sound social policy. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 27, 2004, 5:47pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/227 "2004-11-27T17:47:22Z")
> [@Huerta88](#): > > “Marriage” has never been defined or imagined as including same-sex couples. Thus, proving that there is a historical recognition of the right to “marriage” does almost (or perhaps, entirely) nothing to advance your cause. Two points need to me made here. First, your statement is false. There is evidence of historical recognition of same-sex unions. [John Boswell](http://www.amazon.com/exec/obidos/tg/detail/-/0226067114/qid=1101577278/sr=8-3/ref=pd_csp_3/104-9618267-7259107?v=glance&s=books&n=507846)\* makes a strong arugment that the Catholic Church had a ceremony recognizing such marriages. Chinese history show strong evidence that, like Greece, homosexuality between men was openly accepted as long as the men also fathered children. Tradition is not the slam dunk you seem to think. The second point is that, yes, showing that SSM has been accpeted in the past does disprove your notion that it never has and does advance the cause. Additionally even if we can’t prove it was accepted in the past, it doesn’t preclude us doing so now. Times change and people realize the superstitions and prejudices of the past are needless and ignorant. \*That book lists the original texts and English translations of a number of religious ceremonies: Office of Same-sex Union, (and similar names), 10th, 11th, 12th, 13th & 16th century translations, Greece Office of Same-sex Union, 11th century Christian church in Greece. The Order for Uniting Two Men, 11-12 century, Old Church Slavonic Office of Same-Gender Union, 12th century Italio-Greek. An Order for the Uniting of Two Men [or Two Women], 14th century Serbian Slavonic Order of Celebrating the Union of Two Men, prior to 18th century, Serbian Slavonic" ---
**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:** [November 27, 2004, 6:03pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/228 "2004-11-27T18:03:21Z")
> [@Homebrew](#): > > 1975 Two gay men in Phoenix legally obtain a marriage license and wed before the county attorney can file an injunction against them. (It is later declared void.) > > Also in 1975, A Boulder, Colo., county clerk issues a marriage license to a same-sex couple that tells her they’d been denied one in another county. Word spreads, and she issues licenses to about a half-dozen same-sex couples before the state’s attorney general deems the unions legally void. > > **Until the action voiding them, they must be presumed to have been recognized**. I admit that’s slim; but your question is really irrelevant anyway. “It’s always been that way” is not a sound social policy. My bolding. Not true, and the Gavin Newsome experience showed in CA. I’m not arguing that it’s good social policy. I’m just arguing that laws which did not stipulate marriage partners had to be of the opposite sex implicitly (or explicitly) sanctioned SSM. ---
**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:** [November 27, 2004, 6:24pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/229 "2004-11-27T18:24:15Z")
> [@ElvisL1ves](#): > > **Dewey** , since you’ve decided not to take your vitriol to the Pit after all, Perhaps I’m just speaking through a tryptophan-induced mental haze, but could you again please point out where I’ve been vitriolic, especially in comparison to your own remarks directed at **Huerta**? > [@ElvisL1ves](#): > > perhaps you can also expound upon your assertion that “M=1M+1W” is so fundamental a part of society that it didn’t even get written down in some places until the Eighties. Seems like a post-hoc rationalization, don’t it? No, it just means it was deemed so fundamental that it didn’t need explicit codification. _Of course_ marriage meant a male-female union, the pre-80s legislator would think, because that’s just what marriage _is_. Explicitly defining it as such would seem as silly as explicitly defining “bicycle” as a two-wheeled, human-powered mode of transportation. I mean, seriously: do you really believe that any legislator who had any hand in authoring or amending any state’s marriage statute over two decades or more ago really envisioned the statute as encompassing same-sex pairings? Can you really say that with a straight face? So no, it isn’t a post-hoc rationalization. Where such statutes have been modified to clearly indicate male-female pairings, that change simply represents a clarification as to how the law was already understood and applied. Trying to claim otherwise just doesn’t pass the giggle test. ---
**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:** [November 27, 2004, 6:29pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/230 "2004-11-27T18:29:01Z")
> [@DMC](#): > > If longstanding tradition is as much a part of the law as the written word, why the rush to actually run out and write the words? Well, cite for the fact that there was a “rush” to do so, first of all. Secondly, statutes are clarified as a matter of course with some regularity. It is hardly surprising that given the unfolding social landscape that some legislators would want to make explicit that which was already considered clearly implicit in the term “marriage.” Third, assuming the 1970s-era attempts Homebrew notes are true, such changes would be attempts to fend off frivolous litigation on the subject by clearing up a latent ambiguity in the law. ---
**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:** [November 27, 2004, 6:35pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/231 "2004-11-27T18:35:24Z")
> [@DMC](#): > > Heck, for that matter cite that “Longstanding tradition is as much a part of the law as the written word.” What \*\*Bricker \*\*said. _(and later in the thread…)_ > [@DMC](#): > > Yes, since that is what was specifically being referenced when his statement was made. Contrary to popular opinion, until recently there were a lot of states which didn’t specify the sex of two partners in marriage. When the gays started making headway against various forms of discrimination, a lot of states quickly passed laws defining the term more narrowly. If tradition had the same weight as the written word, these quickly passed laws (and the even more recent constitutional amendments, which I’m assuming are intended to add more weight) would have not been necessary. Well, I never said that tradition had the same weight as the written word; obviously, statutes are often passed for the precise reason of undoing a rule that has been in place as a part of legal tradition. See, e.g., how some states have gotten rid of their traditional contributory negligence schemes by statute in favor of a more plaintiff-friendly comparative negligence scheme. Having said that, you’d be hard-pressed to argue that the revisions to marriage statutes you note were put in place to undo such a tradition. That is, you’d be hard-pressed to argue that the legislators making those changes thought they were making any kind of substantive modification to the institution of marriage, as opposed to a simple legislative clarification making explicit what is already implicit via tradition. ---
**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:** [November 27, 2004, 6:43pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/232 "2004-11-27T18:43:05Z")
> [@Polycarp](#): > > Thanks, **Dewey**. Though you disagree with my position, it’s rationally set forth. This isn’t a cry of “Cite!” but simply a request – when it’s convenient, here or elsewhere, give me a leading case or two clarifying social policy as a valid basis for meeting “rational basis” inquiry – simply to improve my own knowledge of the law. What **Captain Amazing** said. Basically, pick any rational basis case and you’ll find social policy as a valid ground for meeting the test. > [@Polycarp](#): > > However, I do wonder whether there’s a cogent argument against my assertion of the right to marriage promulgated in _Loving_ (BTW, what is your take on the validity of that assertion?) and the application of equal protection. To review, in brief: Loving is race-based, ergo strict scrutiny, ergo inapplicable here insofar as equal protection is concerned. > [@Polycarp](#): > > As for **Huerta** , his use of quotation marks around the word “marriage” as applied to homosexuals, and his obvious desire to **find** a justification for his position, rather than applying rational analysis to the issues here, plus the fact that he chose not to answer me, makes it clear that his intent here is not to debate on a level playing field. I expect this kind of crap from **Elvis** , but not from you. **Huerta** has done a fine job of making a cogent case based on the law for his position. This is just an insult, and one without any basis at that. Shame on you. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 27, 2004, 6:44pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/233 "2004-11-27T18:44:19Z")
> [@Dewey Cheatem Undhow](#): > > Well, cite for the fact that there was a “rush” to do so, first of all. Are you serious? > [@](#): > > Secondly, statutes are clarified as a matter of course with some regularity. It is hardly surprising that given the unfolding social landscape that some legislators would want to make explicit that which was already considered clearly implicit in the term “marriage.” One man’s “clearly implicit” is another man’s “non-existent.” > [@](#): > > Third, assuming the 1970s-era attempts Homebrew notes are true, such changes would be attempts to fend off frivolous litigation on the subject by clearing up a latent ambiguity in the law. Well, those judges that overrode the existing laws at that time and thus voided those marriages sound a lot like what I would consider an “activist judge”, one who ignores the law when making a decision, as opposed to one who overrides a law due to it not passing constitutional muster. I just knew if this kept up long enough, it would eventually come back around to activist judges. Thanks for helping us find true examples of them. ---
**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:** [November 27, 2004, 6:54pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/234 "2004-11-27T18:54:25Z")
> [@DMC](#): > > Are you serious? Yes, actually. Please give me some evidence that there was a “rush” to add “male/female” to marriage statutes in a meaningful number of states in the early 1980’s or thereabouts. I ask because it’s entirely possible that several states just made clarifying technical corrections to their statutes, something that is routine and happens all the time. > [@DMC](#): > > One man’s “clearly implicit” is another man’s “non-existent.” Tell it to the judge. Specifically, get in your time machine and tell it to the judge sitting on the bench pre-1980s. This doesn’t pass the giggle test. Are you seriously contending that the legislators of the day several decades past deliberately worded their marriage statute so as to allow same-sex pairings? > [@DMC](#): > > Well, those judges that overrode the existing laws at that time and thus voided those marriages sound a lot like what I would consider an “activist judge”, one who ignores the law when making a decision, as opposed to one who overrides a law due to it not passing constitutional muster. If the authors of a marriage statute considered it clearly only applicable to male-female pairings, and the absence of specific language to that effect amounts to what is essentially a legislative oversight, then it is not activist to limit marriage to male-female pairings. That isn’t the judge imposing his own worldview; that’s the judge giving full effect to the desires of the people speaking through their representatives. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 27, 2004, 7:41pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/235 "2004-11-27T19:41:50Z")
> [@Dewey Cheatem Undhow](#): > > Yes, actually. Please give me some evidence that there was a “rush” to add “male/female” to marriage statutes in a meaningful number of states in the early 1980’s or thereabouts. [Okay](http://www.nlf.net/briefs/burns.htm) > [@The amicus brief against same sex marriage in the case](#): > > The reason this more flexible approach was created and is sometimes preferred is that it allows courts to support progressive movements in other states and apply them to their own state as a better rule of law. Barbara J. Cox, Same-sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home? 1994 Wis. L. Rev. 1033, 1097. But even were this Court to follow the better rule of law approach, Georgia’s law is not “anachronistic, behind the times,” or “a ‘drag on the coat tails of civilization.’” Rather, it was only recently enacted, in 1996. Ga. Code. Ann. § 19-3-3.1 (2000). Its enactment was part of a national movement in this direction. **At the beginning of 1994, no state had such a statute. As of today, thirty-five states have such laws.** I never said it happened in the 80’s, by the way, just that there weren’t a large number of laws specifically voiding same-sex marriage at that time. Our bigotry has only been codified more recently. > [@](#): > > This doesn’t pass the giggle test. Are you seriously contending that the legislators of the day several decades past deliberately worded their marriage statute so as to allow same-sex pairings? Nope, I’m saying that the vast majority of them never thought about it one way or the other. Once again, people have the right to marry, unless there is a specific law to prevent said marriage. I’d further argue that they constitutionally have a right to be married **in spite** of said laws, but that’s a different debate. > [@](#): > > If the authors of a marriage statute considered it clearly only applicable to male-female pairings, and the absence of specific language to that effect amounts to what is essentially a legislative oversight, then it is not activist to limit marriage to male-female pairings. That isn’t the judge imposing his own worldview; that’s the judge giving full effect to the desires of the people speaking through their representatives. Since the authors of most of those laws are long dead, it’s a bit presumptious to put words into their mouths or into their laws. I’ll stick with the activist label, thanks. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 27, 2004, 7:45pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/236 "2004-11-27T19:45:09Z")
I’ll even provide the exact wording from one of those newer statutes, to show that they were indeed single purpose statutes, that purpose being to put a stop to same-sex marriages before they started happening more frequently. Here’s Georgia, since it’s the one that was used in that case: > [@Georgia Code 19-3-3.1](#): > > (a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state. > (b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties´ respective rights arising as a result of or in connection with such marriage. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 27, 2004, 8:43pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/237 "2004-11-27T20:43:51Z")
> [@Dewey Cheatem Undhow](#): > > Perhaps I’m just speaking through a tryptophan-induced mental haze, but could you again please point out where I’ve been vitriolic, especially in comparison to your own remarks directed at **Huerta**? And in comparison to those presented by **stratocaster** against me too, I trust? It seems you seriously have your own conduct blocked out in your mind, don’t you? Try scrolling back and reading your own posts and it should become clear. It isn’t worth my time. > [@](#): > > No, it just means it was deemed so fundamental that it didn’t need explicit codification. _Of course_ marriage meant a male-female union, the pre-80s legislator would think, because that’s just what marriage _is_. In the same way that a Virginia legislator as recently as 1967 would think that, of course, marriage could only occur within the same race, out of simple tradition? > [@](#): > > Explicitly defining it as such would seem as silly as explicitly defining “bicycle” as a two-wheeled, human-powered mode of transportation. And yet, if there were ever reason to explore the definition of “bicycle” in a court case, it would be necessary to do exactly that. Funny, huh? > [@](#): > > I mean, seriously: do you really believe that any legislator who had any hand in authoring or amending any state’s marriage statute over two decades or more ago really envisioned the statute as encompassing same-sex pairings? Can you really say that with a straight face? Very possibly, yes. You have no reason to know the contrary, despite your once again substituting scorn for argument. > [@](#): > > So no, it isn’t a post-hoc rationalization. Where such statutes have been modified to clearly indicate male-female pairings, that change simply represents a clarification as to how the law was already understood and applied. Trying to claim otherwise just doesn’t pass the giggle test. **DMC** has done some good work, just above, to show that you are wrong about that, too. Can _you_ say “with a straight face”, that the law is and has always been crystal clear, and that the rational basis for it is also clear, \*without a single damn word of it being written down anywhere \*? And with no post-hoc rationalizations that pass even a minimum test of, um, rationality being articulated even today? Talk about the “giggle test”. Your handwaving is certainly worth giggling at. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 27, 2004, 8:53pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/238 "2004-11-27T20:53:31Z")
> [@Bricker](#): > > Are you now arguing that a refusal to recognize same-sex marriage does not survive even the rational basis test? Yes, I am arguing this very thing. Having a rational _excuse_ for the law does not end the rational basis test. In Romer vs Evans, Colorado argued that their Amendment 2 only put gays in the same position as everyone else and only denied them “special rights.” On the surface, this sounds like a rational basis. But the Court responded to this by rejecting that argument as “implausible.” Using a similar line of logic, I reject the arguments used in favor of the “protection of marriage” amendments (such as encouraging procreation) as being implausible. What exactly, are they protecting marriage from? The answer, of course, is homosexuals. Any other excuse is merely window dressing to disguise one’s prejudices. ---
**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:** [November 27, 2004, 8:57pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/239 "2004-11-27T20:57:53Z")
> [@ElvisL1ves](#): > > And in comparison to those presented by **stratocaster** against me too, I trust? It seems you seriously have your own conduct blocked out in your mind, don’t you? Try scrolling back and reading your own posts and it should become clear. It isn’t worth my time. Typical dodge… > [@](#): > > In the same way that a Virginia legislator as recently as 1967 would think that, of course, marriage could only occur within the same race, out of simple tradition? No. Anti-miscegenation laws were just that-- laws. They were \*\*\*explicitly \*\*\*on the books, not implicitly read into the definition of marriage. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 27, 2004, 9:04pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/240 "2004-11-27T21:04:07Z")
> [@Dewey Cheatem Undhow](#): > > No, it just means it was deemed so fundamental that it didn’t need explicit codification. _Of course_ marriage meant a male-female union, the pre-80s legislator would think, because that’s just what marriage _is_. Explicitly defining it as such would seem as silly as explicitly defining “bicycle” as a two-wheeled, human-powered mode of transportation. Interesting. So what’s the point of this bit? > [@](#): > > [HEALTH & SAFETY CODE > CHAPTER 758. BICYCLE SAFETY](http://www.capitol.state.tx.us/cgi-bin/cqcgi?CQ_SESSION_KEY=CJCRFETNUKBQ&CQ_QUERY_HANDLE=131338&CQ_CUR_DOCUMENT=7&CQ_TLO_DOC_TEXT=YES#HIT0003) > § 758.001. DEFINITIONS. In this chapter: > (1) “Bicycle” means a human-powered vehicle with two > wheels in tandem designed to transport by a pedaling action of a > person seated on a saddle seat. [Previous page](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565.md?page=11) [Next page](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565.md?page=13)