Let's talk about REAL "Judicial Activism"

Jul 2008
19,064
12,953
Virginia Beach, VA
The Supreme Court ruling on gay marriage (and all the state courts and lower federal courts that ruled in favor of gay couples) was called "judicial activism" by the opponents of gay marriage.

What is "judicial activism"?

Wikipedia states, "Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law."

So when the court ruled that same sex couples cannot be denied legal marriage per the XIVth Amendment's guarantee of due process and equal protection the right wingers jumped on the court for ruling based on "personal or political considerations rather than on existing law."

I submit that in this ruling the TRUE "judicial activist" was Scalia who dissented in Obergfell v. Hodges. It is true that Scalia was in the minority and thus his dissent was not a "ruling" I still maintain that his vote against gay marriage in this case was based on "personal or political considerations rather than on existing law."

Furthermore Scalia said so himself.

10 years earlier in Lawrence v. Texas Scalia also dissented. In his dissent Scalia wrote, "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

In other words in this dissent Scalia stated that there would be no constitutional basis for denying same sex couples legal recognition of marriage. That there could be no legal justification for doing so. Yet when confronted with this very question Scalia went against his own opinion on the law and voted based on "personal or political considerations rather than existing law." the very DEFINITION of "judicial activism"

So the next time one of the moral majority/Right Wing/windbags cries about judicial activism in the Supreme Court decision on gay marriage, agree with them and point out how it was one of THEIR guys that was the judicial activist.
 
  • Like
Reactions: 3 people
Nov 2012
41,310
11,878
Lebanon, TN
the marriage ruling is activism by the court..

Marriage has been relegated to the states... there is NO FEDERAL marriage license.
 
Jun 2013
28,864
15,457
Ohio
Labeling any decision the Right wing doesn't like as "judicial activism" is just simply their default reaction. Please ignore this type of troll.
 
  • Like
Reactions: 2 people
Jul 2008
19,064
12,953
Virginia Beach, VA
the marriage ruling is activism by the court..

Marriage has been relegated to the states... there is NO FEDERAL marriage license.
Relegated to the states AS LONG as they do not violate the Federal Constitution. States prohibiting same sex marriage were violating the Federal Constitution.

Even your buddy Scalia said so.
 
  • Like
Reactions: 2 people
Apr 2013
24,581
11,618
The Milky Way
The newly discovered "right" of homosexual "marriage". Yep, pure activism thanks to court-made substantive due process.


 
Last edited:
  • Like
Reactions: 1 person
Jun 2015
1,881
1,386
Minnesota
There is another line of analysis here that we haven't heard much about with all the rhetoric about "states' rights" and how the Roberts Court is "destroying our liberty". It is found in Article VI of the Constitution, which prescribes as follows:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This means that when a State law or policy purposefully violates the fundamental constitutional rights of U.S. citizens by express discrimination, U.S. law must prevail. So we must ask ourselves this question. Do the consenting adult citizens of this country retain a fundamental constitutional right to choose their spouse, or does a particular State retain the power to say "no, you must choose someone more to our liking"?

The same principle applies to mixed-race marriage, to age-gap discrimination, to social or economic disparity or grouping, to religious affiliation, to political views or voting record, or any other means by which the state might think it has the power to regulate whom you may or may not choose for a domestic partner. There is simply no sound legal argument that can be made to justify continued discrimination against an entire class of people in this regard.

With all due respect to the sensitivities of those on the religious right: "God says NO" is NOT a valid legal argument. Sorry, but like it or not, this country is governed by a constitution. Not a Sunday sermon. Personal religious convictions simply do not count.
 
Last edited:
  • Like
Reactions: 5 people
Jun 2012
41,958
15,181
Barsoom
The Supreme Court ruling on gay marriage (and all the state courts and lower federal courts that ruled in favor of gay couples) was called "judicial activism" by the opponents of gay marriage.

What is "judicial activism"?

Wikipedia states, "Judicial activism refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law."

So when the court ruled that same sex couples cannot be denied legal marriage per the XIVth Amendment's guarantee of due process and equal protection the right wingers jumped on the court for ruling based on "personal or political considerations rather than on existing law."

I submit that in this ruling the TRUE "judicial activist" was Scalia who dissented in Obergfell v. Hodges. It is true that Scalia was in the minority and thus his dissent was not a "ruling" I still maintain that his vote against gay marriage in this case was based on "personal or political considerations rather than on existing law."

Furthermore Scalia said so himself.

10 years earlier in Lawrence v. Texas Scalia also dissented. In his dissent Scalia wrote, "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

In other words in this dissent Scalia stated that there would be no constitutional basis for denying same sex couples legal recognition of marriage. That there could be no legal justification for doing so. Yet when confronted with this very question Scalia went against his own opinion on the law and voted based on "personal or political considerations rather than existing law." the very DEFINITION of "judicial activism"

So the next time one of the moral majority/Right Wing/windbags cries about judicial activism in the Supreme Court decision on gay marriage, agree with them and point out how it was one of THEIR guys that was the judicial activist.
That is not the definition of judicial activism, Scalia's dissent did not state there would no constitutional basis for denying same-sex couples legal recognition of marriage, and Scalia did not use a personal opinion, but an opinion backed up by 200+ years of history.
 
Jun 2012
41,958
15,181
Barsoom
There is another line of analysis here that we haven't heard much about with all the rhetoric about "states' rights" and how the Roberts Court is "destroying our liberty". It is found in Article VI of the Constitution, which prescribes as follows:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US., shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This means that when a State law or policy purposefully violates the fundamental constitutional rights of U.S. citizens by express discrimination, U.S. law must prevail. So we must ask ourselves this question. Do the consenting adult citizens of this country retain a fundamental constitutional right to choose their spouse, or does a particular State retain the power to say "no, you must choose someone more to our liking"?

The same principle applies to mixed-race marriage, to age-gap discrimination, to social or economic disparity or grouping, to religious affiliation, to political views or voting record, or any other means by which the state might think it has the power to regulate whom you may or may not choose for a domestic partner. There is simply no sound legal argument that can be made to justify continued discrimination against an entire class of people in this regard.

With all due respect to the sensitivities of those on the religious right: "God says NO" is NOT a valid legal argument. Sorry, but like it or not, this country is governed by a constitution. Not a Sunday sermon. Personal religious convictions simply do not count.
I have to disagree with this.

Article VI does not address fundamental constitutional rights, nor did it have any protection or consideration for citizens. The Supreme Court was left out by design, to encompass all branches and the states. At this juncture of our history, it was the state courts that mostly handled constitutional issues, thus the inclusion of state courts. The debates regarding the purpose of Article VI was limited to Article I, Section 8 and a conflict with a state law that would hinder the federal government regarding Article I, Section 8. There were no rights mentioned in the Constitution in 1787 as they did not join the Constitution until 1791. The further highlight the limited federal judiciary power of Article VI, it was proposed by the anti-federalists.