Judicial activism is a good thing, unless you disagree! And how long have we had it?

Great Debates
281

But this is where the question-begging comes in. “Equality” in the law is defined in terms of equal treatment for similarly-situated people. All people with appropriate vision and qualifications enjoy the right to equal treatment in going for a pilot’s license. All those who don’t should be equally treated in being denied a license. You are trying to sneak in through the back door the notion that there is some free-floating definition of “equality” that contains within it a stealth jack-in-the-box revelation that there is no constitutionally distinguishable difference between “two men ‘marrying’” and “a man and a woman marrying,” while simultaneously allowing that there are distinguishable differences between “first cousins marrying” (unlawful) and “second cousins marrying” (lawful, somewhere). In other words, you are using repetition of “equality” as a mask for the fact that the law treats different people differently all the time, but that you’d like us to believe in one particular instance that such different treatment is ludicrous and bad, whereas in others it is among the allowable range of policy preferences. In so doing, you are making a perfectly acceptable argument from personal policy. Fine. Just don’t bring the Constitution into it and pretend that the Constitution is plainly, logically, and necessarily offended by treating homosexual couples differently from heterosexual couples, in terms of marriage benefits the state may choose to extend or withhold, but that the Constitution is not bothered at all by treating first cousins and second cousins differently – and that, to boot, anyone who couldn’t understand the pellucid constitutional grounds, in a rational basis inquiry, for the distinction you’d so blithely draw between the two cases could only be “playing dumb.”

Yep, I suspected that was where we were headed right quick. It’s actually a “contract between two people and [that small part of] society [that holds my enlightened views].”

And you cannot escape the inevitably elitist and sneering tenor of simply writing off that (possibly largish) part of society that quite probably wouldn’t support the “tripartite contract of couple and society” by simply saying that “society favors equality before the law; I define ‘equality before the law’ as necessarily including ‘gay marriage;’ thus society favors ‘gay marriage,’ or if it doesn’t, it is merely engaging in ‘cognitive dissonance.’”

Another way of putting this is that you do not win constitutional or moral battles by word-games. “Society agreed to equality before the law – but I fooled them good, because little did they know that based on my secret definition of equality, that also included ‘gay marriage!’” No – you are attributing to society a peculiar and individualistic definition of ‘equality before the law’ that society never signed on for when they (putatively) signed on for ‘equality before the law.’" Seriously, do you not understand how condescending is it to say that society (or substantial portions of it) “don’t recognize” that “SSM” “is entailed” by an amendment passed in 1865? They’re competent to “agree to” such a right (remember, we’re still positing the lovely consensual “tripartite contract”), but too freaking stupid to know that they’ve agreed to it?

If they don’t think they’ve agreed to that definition of equality before the law, then they haven’t.

Which still leaves you absolutely free to dispute them and disagree with them. It doesn’t leave you free to claim in any meaningful way any form of consensus-based “contract among homosexual couples and society,” if society or subsantial parts of it want no part of it.

Look, I realize that judicial activism, and using the Constitution as a battering ram to impose “rights” or prohibitions never before recognized, is an inherently elitist exercise. One is inevitably saying “I’m smarter and have a clearer vision of what ‘equality before the law’ means than the common ruck of man, or indeed than anyone who came before.” I can certainly understand the impulse to cloak this inherently-arrogant approach in the Kumbaya-ism of fictitious “contracts between a couple and society,” which society recognizes but somehow doesn’t recognize it recognizes, but . . . .

Doesn’t really wash. The better, more honest way is the straighforward one: “Nah. You people are bumpkins and your continued harping on the Constitution and precedent-based, majoritarian argumentation are ridiculous in a country full of unenlightened non-urban hicks whose religious beliefs I consider silly and contemptible vis a vis my own orthodoxies.”

282

Kind of interesting you calling me a snobbish, sneering elitist given the level of condescension you’ve shown me in this thread. You might want to tone that down a little.

Equality. First, you’ll have to show me where I’ve said that cousins aren’t being treated unequally. Now then, to more substantive debate.

First, the relationships formed by homosexuals are functionally equivalent to those formed by heterosexuals, excepting that different combinations of genitals are involved. Comingling of finances, emotional interdependence, desire to be recognized as a family unit, long term planning based on the assumption that the relationship is permanent, etc., all these features they hold in common. So, if it walks like a duck and quacks like a duck, there ought to at least be a presumption that it’s a duck.

Now that presumption might be overridden by other considerations. As you point out, cousins might also form a very similar relationship (though in point of fact I believe 2nd cousins may marry pretty much anywhere, and 1st cousins only in some places), as might minors. So how do we decide which relationships ought to be considered the same, and which not? Well, it seems simple enough. We look for relevant differences. In the case of minors, it’s easy, as minors cannot provide the sort of informed consent to enter into contractual sorts of things.

In the case of incest, it’s murkier. There are three basic issues - a widespread societal taboo, concerns about inbreeding, and some consent issues. By itself the taboo isn’t any sort of reason. The source of the taboo, though, is most likely the result of concerns over inbreeding. The risks of inbreeding are complex, but it’s rather unlikely that second cousins have any appreciably greater risk of matching up bad recessives than any random two people. In the case of first cousins, the risks are higher, but how much higher depends in substantial part on how exogamous the population is. In the case of siblings, there is substantial risk, as there is in parent/child combinations. So, there’s a real issue here, but where to draw a line may be tricky. And finally, consent issues aren’t likely to arise in the case of cousins, but in the case of immediate family members, there is a real concern that one party may be exerting undue influence over the consent of the other party. So, in conclusion, we have some significant and relevant differences, but what differences in treatment they merit may be open to some debate. Fair enough?

In the case of gay or lesbian couples, there again several potential issues - a societal taboo again, inability to have children together, and religious dictates against it. Again, the societal taboo isn’t really significant except insofar as it’s actually based on reasons. The rest is just ‘ick factor’ that isn’t relevant. I mean, the fact that someone thinks gay sex is icky is no more relevant to gays being married than the fact that I think obese people having sex is icky is to them being married. Infertility is no more relevant in this case than it is in the case of infertile hetero couples, not least because some gays or lesbians may be bringing in children from past relationships, or be intending to adopt or have children using surrogate parents. So that leaves us with the religious dictates. This is pretty shaky ground, though. I mean, if the law is supposed to respect religious dictates, we should be restricting the sale of pork and beef, we should be criminalizing adultery, etc, etc, etc. So it’s going to have to be up to the religious advocate here to tell us why this particular religious dictate deserves legal attention, and this is going to be a tough row to hoe, given that we have a tiny handful of verses whose interpretation is in dispute, as compared to the overwhelming condemnation of adultery and other such things.

Finally, it may be relevant here that both heterosexuals and homosexuals seem, according to our best current understanding, to be innately drawn only to members of the opposite/same sex, whilst I know of no one who has claimed that there might be some people who are innately drawn only to close relatives.

So, here we’ve got a slamdunk for treating minors differently, a potentially tricky case for treating incest at least somewhat differently, and essentially no case whatsoever for treating gays and lesbians differently.

How this plays out constitutionally is going to depend on how the equal protection clause is interpreted, but it seems that there is a case that can be made. Precedent and the current makeup of the Supreme Court might make it unlikely that that interpretation would be operative were they to decide the matter, but that doesn’t mean that the case isn’t there, any more than the fact that precedent and the current makeup of the court make overturning Roe v. Wade unlikely means that there isn’t a case to be made for doing exactly that.

Finally, you may take your snide righteous indignation at “judicial activism” which you think is “inherently elitist” and shove it right up your ass. There are social and legal compacts which underlies our countries. People sometimes disagree about how those compacts should be understood and interpreted. If a judge views the legal compact known as the Constitution differently than you do, and enforces his view, as it is his job to do, that is not any more “inherently elitist” than is a judge who holds the same view as you enforcing his view. If there’s any inherent elitism going on here, it’s judicial review of legislation in general, not just judicial review that comes out differently than you think it should, in which case you should be complaining about Marbury v. Madison, not Roe or Griswold or Lawrence or whatever.

283

I think you go off the track in a number of ways here. First, you are simply wrong in suggesting that “taboo isn’t any sort of reason” that could justify a rational basis constitutional test. At most, you’ve stated a personal diktat.

Do you think it would be constitutionally prohibited for a state to ban the humane and safe slaughtering and eating of dogs in your front yard, while allowing the humane and safe slaughtering and eating of pigs in your front yard? It would not. Social convention is as good a flavor of rational basis as any other flavor. Don’t believe me? One might try having vigorous, high-noon heterosexual sex in one’s own front yard, as I’ve suggested before, with a consenting adult opposite-sex companion, in an all-adult gated community. Would one go to jail? Quite right, one would, and the Constitution and Supreme Court would utter no peep, notwithstanding one’s vehement protestations that one was the victim of a “mere taboo” or “societal squeamishness” against “totally harmless” conduct. So the state frequently favors or disfavors “not icky” or “icky” behavior, and that’s not determinative of the constitutional question.

Incest and inbreeding – Does anyone have any evidence as to whether two mentally retarded adults who are cognizant enough to exchange mutual consent, but nonetheless have significantly low IQs associated with chromosomal disorders, are less or more likely to pass on a “negative” genetic traits than are first cousins? I don’t know, and I’d suspect that some retarded couples might well have high genetic risks, maybe higher than otherwise-healthy first cousins. Yet society (the states) now generally would allow the retarded couple to marry and reproduce, while not letting the cousins – and most people are fine with that potentially-inconsistent policy decision because cousin-humping remains taboo but being retarded really doesn’t. The point is not the details of the biology or the genetics – it is that the states are the ones who make the genetic-handicapping and social policy and yes, indeed, taboo decisions, certainly in a rational basis regime, without sidewalk superintendants at the courts saying, hey, I think you missed an allele over there, we might have counted that differently.

My point, and I’m sorry it stung you thus, is that your underlying position on this issue is inherently, to begin with, a voice-in-the-wilderness, or minority (or elite-based) one, because it’s never commanded significant popular or judicial recognition. That’s fine, there have been plenty of prophetic voices who’ve ultimately won people over. Just consider not laying claim to some sort of “social compact” as implicitly providing majority (or law-based) acceptance and support for a specific view that doesn’t have such direct support, at least not yet.

Now: It is indeed an “inherently elitist” result when the judge enforcing your and his view (or mine) is overturning a majoritarian law by creating and imposing a policy opinion that only he and a minority support.

It is not at all an elitist result in this sense when the judge “enforcing” “my view” or for that matter “your view” is in reality merely allowing to stand a majoritarian law. I can’t imagine a much better understanding of “elitist” than “believing that power and legitimacy ultimately reside in the few,” or of “anti-elitist” than “generally deferring to the legitimacy of the opinions of one’s fellow citizens, even when this means acceptance of policies not necessarily tasteful to one.”

You are following the distinction I draw between the authority of the few (an “elite,” in whose legitimacy or correctness I do not presumptively trust on matters of policy) and the authority of the many (a “representative democracy,” whose legitimacy is rebuttably presumed in our system)? And the fact that the non-overturning of a never-overturned democratic law is fundamentally different, in terms of the “activism” involved, than the overturning of one enacted by the people?

Should I? Maybe so. In fact . . . see post 33.

Now, because the nature of being against activism is to fight further decay of the ‘republican form of government’ (to choose an apt if unenforceable phrase for today’s debate) and to choose battles wisely, strategy may dictate that I focus my arguments on current and future battles. It doesn’t mean these arguments couldn’t also have force against Marbury or the anti-federalism cases (which I’ve also criticized in this thread), if the Solons would ever allow that debate to be re-opened.

284

Yes, I’m a voice in the wilderness. :rolleyes: Give me a friggin break, I’m in the majority in this country.

As for complaints about my logical analysis of what constitutes equality in the previous post not being constitutionally adequate, I never intended it to be. You asked me how I could say “equal” here and “unequal” there, and I answered. You can dispute the points I raised concerning incest, but it remains the case that there are at least points to dispute. That was all I was saying. There are no points to disupte in the case of same sex marriage. And to the extent that I am convinced that the differences I brought up regarding incest aren’t relevant, I would not oppose legalization of incestuous marriages. Shocking, isn’t it, that I’d be consistent like that.

As for your defense of majoritarian absolutism with no provisions protecting personal autonomy, I have only this to say. You may be fine with me having a say about how you may legally behave in bed with consenting adults, but I’m not fine with you having a say about how I may behave in bed with consenting adults. Sorry. Just not up to you in any way whatsoever. You don’t get a vote on that, and I don’t understand why you think you should, or would even want to.

285

Problem solved! We don’t need to drag the Supreme Court into this at all, and we can just put it to a vote, as I’ve been saying all along is the case absent a clear constitutional prohibition. Except where this debate started was people unhappy with the majoritarian proposition. So perhaps your majority is, like your social compact, a little less major than you’re implying.

Wrong, and I never said it. The provisions protecting personal autonomy are the clear and explicit provisions of the Constitution. Majority laws are presumptively proper, absent rebuttal of the proposition, which is very difficult to do in rational basis land.

Or, if you want to agree that we’ve left rational basis land, then show how and why intermediate or strict scrutiny would apply. Either way, it’s not as simple as declaring (or even as simple as repeating many, many times) “equality before law.”

Here’s the trifecta that proves you aren’t reading, or aren’t understanding, the posts, in at leasta three of which I’ve disclaimed any slightest interest in telling you what you can or can’t do, or what rational-basis-fulfilling laws you can or cannot enact, at all, assuming you live in one of the many jurisdictions in which I don’t. Oops. And where’d we get back to how you behave in bed? I thought the last 20 posts were about “SSM?” And surely that’s not about sex, because marriage was never about procreation and sex, right?

Your other apodictic statements are noble and stirring (“Just not up to you in any way whatsoever”) but have nothing to do with adjudication of laws under the United States Constitution, so I’ll just admire their sentiments and pass along.

286

Moderator’s Note: Gorsnak, this sort of language is not appropriate to this forum. Keep it in the Pit, please.

287

We went ‘round and ‘round about this issue before, but, if it helps the discussion, we can do it all again.

I will submit to Bricker’s original limitation that we only discuss whether or not a ban on same sex marriage meets the rational basis test. Although I strenously disagree that rational basis is the standard that should apply to the infringement of a fundamental right, for the purposes of this post, I will argue it does not even meet the rational basis test.

As the majority in Goodridge discussed, there are three reasons the state had given for denying marriage benefits to same sex partners: 1) To provide a favorable situation to procreate; 2) To provide a favorable situation to rear children; and 3) To save money for the State.

Meeting those three goals by denying marriage to same sex partners is, in my mind, not rational. While I agree having a solid family structure and having a positive place to rear children are valid interests the States have, I really have a problem with banning gay marriage as a rational way to meet those interests. I am completely not convinced that procreation is a reason for civil marriage and that heterosexual couples are better parents than same sex couples. I do not believe that same sex couples are any less stable, or that they cannot raise children as well as heterosexual couples. I think that the denial of marriage rights to same sex couples for those reasons is based on antiquated and bigoted beliefs about homosexuals.

I find Sosman’s dissent in Goodridge to be the most honest of all the opinions in the case. He states:

“there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity.”

However, he still finds the legislature meets the rational basis test. His point basically boils down to: we don’t know that same sex couples can be as good as opposite gender couples at having a solid familial structure and at raising children, so we must defer to the legislature. I respectfully disagree with his conclusions, however, because I do not see the rational basis behind denying marriage to same sex couples.

I believe I fully understand the points Bricker, Huerta and others have made in this thread. I agree the judicial branch should, in most cases, defer to the legislature. However, I believe that the irrational discrimination against minorities by the majority is one area in which I am comfortable with the judiciary interceding. And I believe denial of marriage to two people simply because they happen to be the same gender, is irrationally discriminatory.

Now, to avoid a free-for all, I am more than willing to discuss anything in this post, or the next step in the discussion that Bricker feels would be conducive to the debate. To forestall what I anticipate will be the next hijack, I will state that I believe legislation banning marriage between multiple partners, siblings, and animals all have a rational basis.

And, as an aside, personally, I believe in another 50 years or so, society will look back to now as we today look back at Loving and wonder how we could ever tolerate such discrimination.

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My limitation was not intended to totally forestall discussion of other standards - but it seems clear that before we decide whether there is an Equal Protection violation we must decide what standard we’re using, and there’s no point in arguing that an intermediate standard or strict scrutiny applies if you can prove that even rational basis fails to sustain the ban.

With all due respect to the respondents in Goodridge, though, I am not willing to accept as exhaustive their rationales in this case. I would add, as a state interest, “Preserving an important societal tradition.”

The question is not whether you would reach the same conclusion. The rational basis test is not, “Do I agree with the reasoning and conclusions?” It is, “Could a rational decision-maker reach these conclusions on any existing set of facts?”

I emphasize again that this is a very low standard. It’s not asking you to agree that the conclusions are RIGHT. Just that they have some basis in rational reasoning, even though you personally may strongly disagree.

289

I agree. However, I believe that the rational basis test is the incorrect test to apply. Do you believe that the legislation denying same sex partners the right to marriage could meet strict scrutiny? Intermediate scrutiny? I can understand, and disagree with, your view that there is a rational basis. However, I think you would have a much harder time convincing somebody that these limitations on marital privileges to same sex couples would meet a higher level of scrutiny.

And, to no one’s surprise, I disagree that that is a sufficient basis. Once again, I understand that tradition may be one part of a rational basis, but when that tradition based on a bigoted, irrational distrust of homosexuals, it does not hold much water for me. Marriage as a “important societal tradition” has survived Loving, hell, it even survived Liza Minelli. Just because the discrimination is founded on a important societal tradition, does not make the discrimination any less irrational.

I understand. As I stated, I do not agree that a rational decision maker could conclude that heterosexual partners are per se better familial units than homosexual partners. The entire basis for the reasoning by the legislature is based on a long-standing (pick one: misunderstanding, fear, hatred, confusion, dislike, moral outrage) of homosexuality.

290

Couldn’t one argue that allowing gays to marry does not undermine in any way the preservation of that tradition? Everything about opposte sex marriage remains exactly the same, and the tradition is intact.

291

One always could, but the existence of an alternative viewpoint to the one proferred by the state doesn’t negate the rational basis.

I suspect that a state confronted with this argument would say, constitutionally, “So what? We’ve shown a basis that is rational, and you’ve now suggested another possibly-rational policy view; but the game ended constitutionally once we showed ours, and your showing your rational basis for an alternative policy doesn’t shift any burden back to us.”

I suspect they’d say, substantively as to the social issue: “Traditions can in our view be weakened by dilution or by deviation from their original purpose. We viewed the social tradition value of marriage as consisting partly (and precisely) in the fact that not everyone could call themselves ‘married,’ and partly in the fact that marriage sanctified the procreative process and vice versa.” You would of course be free to disagree with this version of tradition, but it’s not ridiculous on its face. Cf. If John Kerry or John McCain were told that the military had changed its policies and that henceforward everyone who went into combat (not just everyone who went to combat and got wounded) would be awarded a Purple Heart and the benefits appertaining thereto, this would not take away their Purple Hearts, and might or might not even bother them; but it would be far from facialy irrational for them or other Purple Heart recipients to feel that the “Purple Heart Tradition” had been diluted or weakened by changing the conditions for who could qualify for it.

292

A rational basis test that starts with the assumption that one of the proferred bases is definitely irrational is a test the state is going to have a hard time passing, for sure. But obviously not everyone finds or has seen the alleged (or inherent) bigotry or irrationality of treating homosexuals as ‘differently-situated’ from heterosexuals.

Again, absolutely fine and understandable as personal opinion goes, but not helpful as part of a non-rigged constitutional test of rationality.

293

Of course.

I’ve been wondering about your view on this. What reason do you accept as rational for the disparite treatment of homosexuals and heterosexuals in this realm? What is the basis of that reason? I can understand, a bit, your and Brickers insistence on tradition, but I have a really hard time understanding what is rational about treating heterosexual couples and homosexual couples differently? Do you believe that homosexual couples are less stable? That they are somehow less capable of raising children? That homosexual couples are less likely to provide a supportive family situation for the raising of children?

Again, please explain to me why this discrimination is not irrational?

294

No, I agree with you here: I believe that under either strict scrutiny or O’Connor’s murky “intermediate scrutiny,” these bans would not survive.

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…

295

I will certainly conceded there is a more than adequate legal basis for the legislation to pass the rational basis test. But, before we move on to the proper level of scrutiny, I’d like to tarry a moment on why the legislation passes the rational basis test. As I said: "What reason do you accept as rational for the disparite treatment of homosexuals and heterosexuals in this realm? What is the basis of that reason? I can understand, a bit, your and Brickers insistence on tradition, but I have a really hard time understanding what is rational about treating heterosexual couples and homosexual couples differently? Do you believe that homosexual couples are less stable? That they are somehow less capable of raising children? That homosexual couples are less likely to provide a supportive family situation for the raising of children?

You see, to me, and I think reasonable people may be able to disagree, the rationale behind denying the benefits of marriage to same sex partners is based solely on a unpermissible dislike for homosexuals. I’m more than open to other ideas, but a vast majority of the rhetoric I hear regarding the reasons for a ban on same sex marriage boils down to a belief that homosexuality is immoral and is likely to pervert any children in said marriage.

296

I imagine there are people that feel this way, but I don’t. The idea that gay couples would somehow “pervert” their children seems unlikely to me: if it were so, why wouldn’t straight couples similarly mold their children, with the result being no gay people to begin with? It seems much more likely that children raised by gay parents would be straight or gay, as they were born, regardless.

No, my only reason for insisting that the legislation would survive rational basis testing is the belief that “Marriage is one man, and one woman,” is a strong tradition in this country, and preserving that tradition is sufficient reason to survive the test. I am in favor of state recognition of same-sex marriage, after all, so I my personal scale finds rationality in those arguments which support it. But I recognize that the “rational basis” test is a very low hurdle, and that the mere desire to continue to call man-woman unions, and nothing else, “marriage” is sufficient to survive.

A tantilizing question: does the federal Equal Protection clause mandate state recognition of civil unions, equal in effect to marriage? That approach scuttles the “tradition” argument in some way…

297

And here is where we can agree to disagree. As I stated earlier, tradition, like that in Loving, is an insufficient basis to deny homosexuals the same marriage rights as heterosexuals. The mere fact that the discrimination has been traditional does not validate it as rational.

Dear God, man. 6 pages in and you want to throw in a discussion that would take another 6 pages to dissect? You must be a masochist. Or a sadist. Perhaps later would be better.

Instead let’s stay a bit on track. Perhaps you could explain to me why marriage is not a fundamental right. I think Loving and Zablocki clearly indicate that the right to marry is fundamental. I also believe the continued insistence by Huerta that marriage is fundamental right only if you want to marry someone of the opposite gender is … let’s call it legal sophistry. As Judge Greaney pointed out in his concurrence in Goodridge:

It seems to me that marriage is a fundamental right. Do you disagree?

298

A fundamental right is one with deep roots in our nation’s history, or one implicit in the concept of ordered liberty.

The right to marry someone of the opposite gender is a fundamental right.

The right to marry someone of your own gender is not.

299

Again, you run into the problem that Judge Greaney pointed out . . . defining the right to marry as only the right to marry someone of the opposite gender is conclusory. Your stance also runs afoul of the rationale in Loving, where marriage was defined as only being allowed to marry someone of the same gender. And your stance runs afoul of Lawrence, where the right to sexual intimacy was only between a man and woman. I also think it is akin to the idea of separate but equal idea. As long as you define the right in a limited way, you don’t have to deal with the discriminatory effect of the limitation. Just as Lawrence did not allow the state of Texas to define the right to sexual intimacy only to that between people of opposite genders, so too a civil marriage that is limited to only between people of opposite genders still invades upon a fundamental right.

I agree completely that same sex marriages do not have the same “deep roots” in our nations history. However, neither did same sex sexual encounters or interracial marriage. Civil marriage has long been found to be a fundamental right. Limitations on that right, whether between interracial couples, people who still owe child support, or same sex couples, do not change that fact.

300

You need to explain that in a little more detail if you don’t want it to look so ugly. Not that long ago, in your very own state, the argument went:

Your refusal, or inability, to show how there’s a difference now, despite repeated requests, should give you pause. Your inability to support your assertion that tradition alone is a rational basis, meaning one that is a product of reason rather than simple, base emotion, should have given you pause already, if the lack of any other remaining argument hadn’t done it first.
So let’s look at where we’re at: The OP suggests that the term “judicial activism” is used by conservatives only to disparage legal results that make them uncomfortable. It should be clear now that refusing gays the right to marry is not based on the Constitution or any principles that are even respectably articulatable, and that actually applying legal analysis forces the opposite result. This board’s most vociferous claimant of the sanctity of the “no judicial activism” principle has shown his willingness to use it anyway in order to force a particular result. QED.
Since you brought it up, you did ask for a case SCOTUS could have used to settle the matter. They can consider and rule any damn thing they want to, and the MA “tyranny” challenge could have been as a pretext if the court were feeling activist enough in furtherance of its social agenda. There’s no need to explain that the case was lame; that’s obvious.

You might, btw, have read the MA SJC Goodridge dissents yourself before calling them arguments at all, much less “well-crafted” ones - all they amounted to was “We shouldn’t be dealing with this issue at all; it’s for the Legislature and the people to decide”. That isn’t argument, that’s simple evasion, although your own predilection for doing so as shown in this very thread may explain your difficulty in seeing the difference when it’s done elsewhere.