# 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:** 17
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 2, 2004, 3:34pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/321 "2004-12-02T15:34:56Z")
> [@Polycarp](#): > > Regarding the last few posts, I think a case can be made – while it might be a quite reasonable assumption that two persons of the same sex desiring to enter into a marriage are gay, the basis on which the law prohibits the union is not whether or not they are gay, but upon their sex (in the MorF sense). > > Rick, could you expand on the circumstances under which such a claim was made and rejected, with reference to marriage, as opposed to sexual relations or some other related behavior? I’m not so much doubting as curious – while I’ve done some reading regarding the subject, I’m not familiar with any case of the sort you appear to be referencing. Thanks. Greaney’s concurrence in the Goodridge decision does accept that argument. It was also the basis for the Hawaii Supreme Court to overturn gay marriage bans in Baehr v. Lewin way back in 1993. I find that argument, however, more legal sleight of hand than honest constitutional interpretation. The simple fact is that a ban on same sex marriage does not discriminate on the basis of gender, it discriminates on the basis of sexual orientation. A same sex ban also does not serve to disadvantage one gender over another, or have a disparate impact on one gender or another. Since it is not, on it’s fact nor in effect, discriminatory against one gender or another, it does not violate equal protection on the basis of gender. > [@Gorsnak](#): > > Eh? It’s an indisputable logical fact. I wasn’t making a legal point. There is discrimination with regards to who may obtain a marriage license, yes? Now, what categories are used to determine whether a license is issued? Do they check the orientation of the applicants? No, they do not. They check the gender of the applicants. This is discriminating on the basis of gender. There is no way to dispute that. > > Now, this apparently doesn’t count as discriminating on the basis of a suspect class (gender) for the purposes of equal protection analysis, but that is, apparently, because neither gender is disadvantaged, and not because the discrimination is not on the basis of gender. Read my response to **Polycarp**. Your reasoning was also argued in the lower courts in Lawrence, in reference to sexual relations. IIRC, the plaintiffs did not even pursue the argument when it got to the Supreme Court. Your example of checking the gender of the applicants does not apply because both men and women can get married. It is not an individuals gender that is being discriminated against, it is the person they are choosing to marry. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 2, 2004, 3:46pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/322 "2004-12-02T15:46:59Z")
> [@Bricker](#): > > Was _Lago Vista_ wrongly decided? I honestly have trouble seeing how a Fourth Amendment arrest issue is relevant to our discussion here. Before I take the time to read the opinions and digest the case could you give me a hint what we’re looking for. Although I suppose it is good for me to be completely aware of every decision the Supreme Court makes, I must admit I’m behind in my legal reading when it comes to Atwater. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2004, 3:59pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/323 "2004-12-02T15:59:34Z")
> [@Hamlet](#): > > But when that “foolishness” has no rational basis/compelling interest to be grounded in, it should be Unconstitutional. > [@Hamlet](#): > > I honestly have trouble seeing how a Fourth Amendment arrest issue is relevant to our discussion here. Before I take the time to read the opinions and digest the case could you give me a hint what we’re looking for. Although I suppose it is good for me to be completely aware of every decision the Supreme Court makes, I must admit I’m behind in my legal reading when it comes to Atwater. In _Lago Vista_ a woman was arrested for a seatbelt violation, for which state law mandated a fine as the only punishment. Nonetheless, she was handcuffed, taken to booking, fingerprinted, photographed, and jailed before release. She sued, saying that the state could have no rational reason to arrest and jail someone for an offense for which the maximum penalty was a mere fine. She lost. I raise it tangentially, not because it’s on point to any particulars of our discussion, but to rebut the idea that foolishness on the part of the state or state actors is somehow constitutionally prohibited. It’s not. ---
**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:** [December 2, 2004, 4:20pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/324 "2004-12-02T16:20:12Z")
> [@Bricker](#): > > If you’re willing to concede, at least _arguendo_, that the rational basis test sustains the ban, we can certainly delve into why you feel a higher level of scrutiny is called for. I think we’re about at the “agree to disagree” point on the results of rational basis anyway… I might be jumping the gun here, but I think you can make an argument that a higher level of scrutiny is called for than rational basis. If you look at Frontiero v Richardson, the standard used there in granting strict scrutiny to classifications made based on gender was that, 1. Gender is an immutable characteristic, like race and national origin, 2. Women have, and still do, suffer from discrimination and prejudice in the society, and 3. “the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Doesn’t sexual orientation fit into these criteria too? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2004, 4:36pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/325 "2004-12-02T16:36:03Z")
> [@Captain Amazing](#): > > I might be jumping the gun here, but I think you can make an argument that a higher level of scrutiny is called for than rational basis. If you look at Frontiero v Richardson, the standard used there in granting strict scrutiny to classifications made based on gender was that, 1. Gender is an immutable characteristic, like race and national origin, 2. Women have, and still do, suffer from discrimination and prejudice in the society, and 3. “the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Doesn’t sexual orientation fit into these criteria too? Oh, you can absolutely make that argument. But there’s no basis for it, other than extending the reasoning you’ve just offered – that is, no court has DONE it yet, but the rationale you present is not off-the-wall crazy. ---
**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:** [December 2, 2004, 4:38pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/326 "2004-12-02T16:38:42Z")
Hooray! My reasoning isn’t off-the-wall crazy! 🙂 ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 2, 2004, 5:13pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/327 "2004-12-02T17:13:41Z")
> [@Hamlet](#): > > While I agree fornication statutes (of which I’ve never heard there being a conviction for) may indeed be unconstitutional, I hate to quote myself, but just poking around about this issue, I found In Re J.M., 525 S.E.2d 441 (2003). In that case, J.M., a sixteen year old boy went over to his 16 year old girlfriend’s house at about 2 o’clock in the morning. They went into her bedroom, she put a stool by the door, they undressed, and started to engage in sexual intercourse on the floor. Unfortunately for the parties, the girlfriend’s mother walked in while they were in flagrante, which led to J.M. fleeing naked out the window. Although the parents did not wish to press charges, J.M. was charged, and convicted of, fornication. The Georgia Supreme Court struck down the fornication statute as violating J.M.'s right to privacy under the Georgia Constitution. They found there was no “compelling interest that it vindicated through means that were narrowly tailored to accomplish only that compelling interest.” So, feel free to fornicate to your heart’s content. In Georgia at least. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2004, 7:26pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/328 "2004-12-02T19:26:57Z")
> [@Captain Amazing](#): > > I might be jumping the gun here, but I think you can make an argument that a higher level of scrutiny is called for than rational basis. If you look at Frontiero v Richardson, the standard used there in granting strict scrutiny to classifications made based on gender was that, 1. Gender is an immutable characteristic, like race and national origin, 2. Women have, and still do, suffer from discrimination and prejudice in the society, and 3. “the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Doesn’t sexual orientation fit into these criteria too? By the way – _Frontiero_ used intermediate, not strict, scrutiny, as per _Craig v. Borem_. Contrast that with _U.S. v. Virginia_ (the VMI Case). ---
**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:** [December 2, 2004, 7:57pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/329 "2004-12-02T19:57:13Z")
> [@Bricker](#): > > By the way – _Frontiero_ used intermediate, not strict, scrutiny, as per _Craig v. Borem_. Oops. I called it “strict scrutiny” because that’s what Brennan called it in _Froniero_. Anyway, whether it’s strict or intermediate scrutiny, it’s still a higher standard than rational basis. And while the courts don’t recognize sexual orientation as a suspect class, I think there’s a good argument that they should. I was actually hoping they would in _Lawrence_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2004, 8:01pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/330 "2004-12-02T20:01:26Z")
> [@Gorsnak](#): > > It’s certainly discrimination _on the basis_ of gender. It’s not like they’re checking the orientation of the applicants. It may not be discrimination _against_ either gender, but it’s certainly discrimination, and the basis on which the discrimination is being done is gender. Someone asked for some actual case law on this point. In _Personnell Administrator of Massachusetts v. Feeny_, appellant challenged a Massachusetts law that gave absolute preference to veterans in civil service job hiring and promotion, despite evidence that the overwhelming majority of veterans were male. This was found to be permissible as “disparate impact,” not gender discrimination. > [@](#): > > …the Fourteenth Amendment “cannot be made a refuge from ill-advised . . . laws.” (quoting District of Columbia v. Brooke, 214 U.S. 138, 150.) The substantial edge granted to veterans by the Massachusetts statute may reflect unwise policy, but appellee has simply failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex. In _Geduldig v. Aiello_, the Court upheld California’s disability insurance system for private employees temporarily disabled from working by an injury or illness not covered by workmen’s compensation. The California system did not cover pregnancy, and four women sued, claiming an Equal Protection violation. “The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.” (quoting Dandridge v. Williams, 397 U.S. 471). In _Michael M. v. Superior Court_, the appellant was charged with statutory rape, defined then as “…an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” He claimed the language of the violated the Equal Protection clause, because only males could violate the law. The Supreme Court upheld the law: “a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” In _Nguyen et al v. INS_, a man born in Vietnam to a Vietnamese mother and a US father was found guilty of a deportable offense and ordered deported. He complained that he should be considered a citizen: had his mother been American and his father Vietnamese, he would have been automatically a citizen, but because father was the citizen, additional steps needed to be taken by his 18th birthday and were not. Nguyen sued claiming a violation of equal protection: different citizenship rules for children born abroad and out of wedlock depending on whether the citizen parent is the mother or the father. The scheme was held to not violate the Equal Protection clause. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 2, 2004, 8:20pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/331 "2004-12-02T20:20:41Z")
For readers that have followed the discussion thus far, here is a quiz. The state of North Brickerkota funds its public school systems in the following manner: 50% of the public school funding comes from the state government, and is delivered to all schools on a pro-rata basis: a school with 200 kids gets half as much state funding as a school with 400 kids. The remaining school funding is accomplished locally, by county, through property taxes. Parents from Pottersville County complain that their schools are poorly funded compared to schools in Bedford Falls County. Most residents of Pottersville Country are poor, and land values are low; the local property taxes do not raise nearly as much money as their wealthy neighbors in Bedford Falls County. The Pottersville parents sue, claiming a violation of the Equal Protection clause: they are not being treated the same under the law as residents of a wealthy county, and their children are, by virtue of being being poor, not receiving the same level of education in public schools as wealthy children are. They point out that there is no good reason for the state to fund 50% of education based on local property taxes. Questions: [ul] [li]What classifications does the law create?[/li][li]Are they “suspect” classsifications?[/li][li]Is there a fundamental right in play here?[/li][li]What standard of review is appropriate here?[/li][li]Should the Court find that North Brickerkota must change its scheme of financing schools?[/li][/ul] (This has little to do with same-sex marriage, of course, but a great deal to do with analyzing a federal Equal Protection claim, the tools for which are in this thread and available to any reader thereof). ---
**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:** [December 2, 2004, 8:49pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/332 "2004-12-02T20:49:35Z")
> [@Bricker](#): > > Questions: > [ul] > [li]What classifications does the law create?[/li][li]Are they “suspect” classsifications?[/li][li]Is there a fundamental right in play here?[/li][li]What standard of review is appropriate here?[/li][li]Should the Court find that North Brickerkota must change its scheme of financing schools?[/li][/ul]. 1. Place of residence, wealth of county 2. No 3. Not a federal right. There may be rights under the state constitution. 4. Rational basis. 5. Probably not (assuming we’re talking about federal courts) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 2, 2004, 9:13pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/333 "2004-12-02T21:13:57Z")
[_Cough, Cough_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=411&invol=1). Excuse me, I must have something in my throat. ---
**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:** [December 2, 2004, 9:34pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/334 "2004-12-02T21:34:17Z")
Yeah, **Bricker** likes making hypotheticals out of real cases. 🙂 I don’t know why, but generally, when I read Supreme Court decisions from that period, I find myself agreeing with Potter Stewart. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [December 2, 2004, 9:43pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/335 "2004-12-02T21:43:11Z")
Let’s use **Bricker’s** example as established caselaw, and apply that case to the question at hand, the banning of same sex marriage. Since **Bricker** has already conceded that, under Substantive Due Process analysis, bans on gay marriage are unconstitutional, we will limit this discussion only to Equal Protection. First, let’s look at “What classifications does the law create?” In relation to same sex marriage, that classification is simple: heterosexuals and homosexuals. One can get married to the person of their choice and one can not. Second, we can look at “Are they “suspect” classifications?” Well, I am aware that there are very few cases indeed in which sexual orientation is found to be a suspect class. It certainly is not a traditionally accepted classification, the big one being race, and the lesser ones being gender, national origin, alienage, indigency, or illegitimacy. But if we look to the language of the case which **Bricker** is discussing, you find this language: “The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Now, going simply from this language in the case, it could easily be argued that same sex partners is saddled with a disability of not being allowed to obtain marriage benefits, that they have been subjected to such a history of purposeful unequal treatment (sodomy legislation, etc.), and they, being a distinct minority that, given the amount of anti-homosexual referenda that was adopted in November, seem to be in a position of political powerlessness as to command extraordinary protection from the majority. So, although it has yet to be a truly successful argument, using **Bricker’s** case, it is a sound, strong argument to make. Third, let’s look at “Is there a fundamental right in play here?” Rather than rehash my prior answer of Yes, of course!, let’s look again at **Bricker’s** case. In that case, SCOTUS stated: “Each of our prior cases involved legislation which “deprived,” “infringed,” or “interfered” with the free exercise of some such fundamental personal right or liberty.” For that proposition, SCOTUS cited Skinner v. Oklahoma. Well, in Skinner, SCOTUS stated: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.” Now, putting it all together, you have **Bricker’s** judges citing a case that states that Marriage is a fundamental right. Seems to me that, well, yes, marriage is a fundamental right. Fourth, let’s look at “What standard of review is appropriate here?”. Well, given that marriage is a fundamental right, and legislation banning same sex marriage infringes upon that right, it seems to me that strict scrutiny should apply. Of course, it is also arguable that the discrimination against homosexuals involves a suspect class, I’ll go with the stronger precedent and say that it probably doesn’t for that reason, but it still does for infringing on a fundamental right. Fifth, and finally, “What should the court do?” Well, given that I don’t think the ban on same sex marriages even meets the rational basis test, it sure as shooting doesn’t meet the strict scrutiny test. So, it appears that, yes, legislation banning same sex marriages does violate the Equal Protection Clause of the United States’ Constitution. _Whew_. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 2, 2004, 9:45pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/336 "2004-12-02T21:45:38Z")
I enjoyed reading the ruling that poor people aren’t discriminated against because they \*are \* poor, but only because they live in a poor _neighborhood_. That was even better than the part where differing levels of education are okay as long as everybody gets some (separate but not even equal, anyone?). Now, to respond: > [@Bricker](#): > > As a general proposition, I agree. > > However, in this particular debate, we are discussing specific principles of constitutional law – not anything else. You might reread the damn thread title and OP, then. We, well some of us anyway, have been discussing if “judicial activism” is a real thing at all, or simply dismissive rhetoric, and so far the simply-rhetoric view has prevailed. > [@](#): > > I have not merely “asserted” that tradition is a valid element to establish rational basis. I have backed it up, with citation to appropriate case law, showing that race-based classifications are suspect and sexuality-based classifications are not. All you have done is show that some courts have ruled that way as well - but without providing any support for that conclusion. That does make case law, but it is not an argument - the fact that some guys wearing robes are as willing as you to make unsupported assertions does not mean yours thereby become supported. > [@](#): > > If you can summarize these points adequately, I am willing to continue explaining to you. If not, I see little hope, because it will mean you lack either the interest or the ability to comprehend these matters. I refer you to your agreement with my earlier general proposition. If you can summarize how the right to marry a person of another race is fundamental, a part of ordered liberty, but that there is no fundamental right to marry a person of your same sexual orientation, I am willling to continue to exploring it with you. If not, I see little hope, because it will mean you lack either the interest or the ability to directly face the issues at the heart of the SSM issue. But then, we’re looking for “judicial activism”, aren’t we, and you haven’t shown us any that has withstood even minimal scrutiny, even if it is the law in effect at the moment. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [December 2, 2004, 9:53pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/337 "2004-12-02T21:53:39Z")
> [@Hamlet](#): > > Well, I am aware that there are very few cases indeed in which sexual orientation is found to be a suspect class. It certainly is not a traditionally accepted classification, the big one being race, and the lesser ones being gender, national origin, alienage, indigency, or illegitimacy. The “traditions” to which you refer are generally only decades-old or even younger, becoming established only within the lifetimes of the current Justices. Those categories became suspect only through the same kind of process by which sexual orientation is becoming one. There had to be court challenges along with lobbying for legislation and simple social consciousness-raising, culminating in a step forward. Perhaps a better word than “traditionally-accepted” would be “_currently_-accepted”? I completely agree with you otherwise and applaud you for your clarity. ---
**Author:** ![Huerta88](https://avatars.discourse-cdn.com/v4/letter/h/82dd89/32.png) [@Huerta88](https://boards.straightdope.com/u/Huerta88)\ **Post date:** [December 2, 2004, 11:21pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/338 "2004-12-02T23:21:14Z")
> [@ElvisL1ves](#): > > Now, to respond:You might reread the damn thread title and OP, then. We, well some of us anyway, have been discussing if “judicial activism” is a real thing at all, or simply dismissive rhetoric, and so far the simply-rhetoric view has prevailed. Is that your eighth self-declaration of victory, or your ninth? I’ve lost track. Maybe you **would** make a good judge. You might struggle with the law, sure. But you’ve got the following judicial-activist line of thinking down pat: “Why does my view prevail? Because I said so!” ---
**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:** [December 2, 2004, 11:51pm UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/339 "2004-12-02T23:51:16Z")
Some people are apparently confused by the point I was attempting to make. Saying that current marriage laws do not discriminate on the basis of gender does violence to the English language. When we talk about the basis of discrimination, we’re not talking necessarily about the target of that discrimination, but about about the particular grounds used to discriminate. So, for example, if I’m a lazy wine connoisseur, I might discriminate between fine wine and bad wine on the basis of their prices. That’s discrimination on the basis of price, even though the target of my discrimination has nothing to do with price, but is simply the quality of the wine. This is not a legal point, it’s simply a point about the meaning of the phrase “discrimination on the basis of x”. Marriage laws discriminate on the basis of gender, for reasons already given. I agree that it’s not unreasonable for the courts to decide that the heightened scrutiny applied to gender discrimination does not kick in just because the law is discriminating on the basis of gender, for the stated reasons - the genders aren’t disparately affected, etc. That is, it’s not discrimination _against_ either gender. I’m not 100% convinced that that’s the appropriate ruling, since the laws in question are making use of a suspect classification, even if they’re not targeting one, but I agree that it’s not an unreasonable position to take, nor am I intending to be arguing against it here. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 3, 2004, 12:54am UTC](https://boards.straightdope.com/t/judicial-activism-is-a-good-thing-unless-you-disagree-and-how-long-have-we-had-it/275565/340 "2004-12-03T00:54:37Z")
> [@ElvisL1ves](#): > > I enjoyed reading the ruling that poor people aren’t discriminated against because they \*are \* poor, but only because they live in a poor _neighborhood_. That was even better than the part where differing levels of education are okay as long as everybody gets some (separate but not even equal, anyone?). I am glad you enjoyed reading. I don’t quite follow from your review if you understood the rationale behind the opinion, since you seem to be mocking it. But sometimes it’s hard for me to tell if you’re confused, sarcastic, serious, seriously sarcastic, sarcastically serious, or seriously confused. > [@](#): > > Now, to respond:You might reread the damn thread title and OP, then. We, well some of us anyway, have been discussing if “judicial activism” is a real thing at all, or simply dismissive rhetoric, and so far the simply-rhetoric view has prevailed. Yes. That was the discussion at the beginning of the thread. In an effort to illustrate the particulars of the discussion, we have undertaken to examine a particular application of the general phenomenon: whether same-sex marriage is mandated by the Equal Protection Clause under a Rational Basis test. When we reach either an agreement, or the point at which we agree to disagree, we can then proceed to examine the heightened levels of scrutiny under the Equal Protection clause. Finally, we can discuss whether same-sex marriage recognition is mandated under the Due Process clause. We will have thus exhaustively examined the application of the Fourteenth Amendment to this issue, and (hopefully) either illustrated the how the application is activist or disspelled the moniker. > [@](#): > > All you have done is show that some courts have ruled that way as well - but without providing any support for that conclusion. That does make case law, but it is not an argument - the fact that some guys wearing robes are as willing as you to make unsupported assertions does not mean yours thereby become supported. When you are arguing constitutional law, it’s a pretty convincing argument to show that the Supreme Court has agreed with you. I decry the application of substantive due process as “activist,” but I clearly recognize the authoritive nature of the case law so derived. Indeed, as I said above, the use of that doctrine and existing case law practically compels recognition of same-sex marriage. If you dismiss existing case law as “some courts have ruled that way,” there is very little authority left to argue from, and your argument becomes, “Well, it SHOULD be this way, because I think so.” What you fail to recognize – here in this thread, and in general in your board existence - is that “Because **ElvisL1ves** thinks so,” is remarkably unpersuasive to the world of law. Now, again I ask you to lay out your understanding of Equal Protection and the rational basis test, or, in the alternative, honestly admit that you don’t quite follow it. > [@](#): > > If you can summarize how the right to marry a person of another race is fundamental, a part of ordered liberty, but that there is no fundamental right to marry a person of your same sexual orientation, I am willling to continue to exploring it with you. If not, I see little hope, because it will mean you lack either the interest or the ability to directly face the issues at the heart of the SSM issue. But then, we’re looking for “judicial activism”, aren’t we, and you haven’t shown us any that has withstood even minimal scrutiny, even if it is the law in effect at the moment. Are you asking for an Equal Protection argument, or a Substantive Due Process argument? Equal Protection: it’s not a fundamental right, because there is no tradition of same-sex marriage deeply rooted in our nation’s history, nor is that right implicit in the concept of ordered liberty. Substantive Due Process: it _is_ a fundamental right, because we know that same-sex sexual encounters are a fundamental right, and it is difficult to conceive a rationale that includes sexual encounters but excludes marriage. Now, I have answered you. Answer me. - Rick [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=16) [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=18)