Who You Calling Activist?

California’s gay-marriage decision reflects the difference between judicial activism and, um, judging.

Read Slate’s legal bloggers’ reactions to the California same-sex marriage ruling on Convictions. Also in Slate,  Kenji Yoshino  calls the decision “revolutionary,”  Emily Bazelon  explains why voters might not freak out, and William Saletan  claims our bans on polygamy and incest, as well as homosexuality, are losing ground.

When it comes to gay marriage, California is a hotbed of activism. Their activist Legislature has twice passed bills that would legalize gay marriage, and their activist governor has twice vetoed those bills. That same activist Legislature also enacted a ban on same-sex marriage in 1977, and its activist citizenry passed a statewide ballot initiative in 2000 doing the same thing. While polls show that Californians are increasingly supportive of gay marriage, other activist citizens have been collecting what now amounts to 1.1 million signatures to amend their constitution in November to say that “only marriage between a man and a woman is valid or recognized in California.” But then today the state’s activist Supreme Court got in on the activist action, finding in a 4-3 decision that the California ban on same-sex marriage violates the “fundamental constitutional right to form a family relationship.” That makes everybody an activist in California, just by virtue of the fact that they are acting. (Let it be noted that it’s particularly activist of the state Legislature and its citizens to be banning and legalizing gay marriage all at the same time.)

In case you are confused about whose superactivist-hero powers trump here, let me add that California’s governor, Arnold Schwarzenegger—who had vetoed both attempts by the state Legislature to enact bills legalizing same-sex marriage on the grounds that they would override the more than 60 percent of the state’s voters who’d approved 2000 referendum—announced today that he would abide by the state Supreme Court’s decision. “I respect the court’s decision and as governor, I will uphold its ruling,” he said in a statement today. “Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

So—and in the event that you are scoring this along with me from the bleachers—that means the Governator, who was once prepared to thwart the will of the Legislature in order to uphold the will of the people, is not prepared to usurp the prerogative of the courts to thwart the will of the people or the Legislature. Nor will he back any future attempts of the people to usurp the powers of the courts. Which by some lights makes him a seriously activist governor and by others makes him the biggest wuss in history.

Let’s stipulate that these gay-marriage decisions inevitably degenerate into cartoonish attacks on the judiciary and—in an election year—even more cartoonish battles over judicial ideology. Every time a state court reads its own constitution and precedent to find a right to gay marriage, the critics always cry activism. They do that before they read the opinion, which means they can do it regardless of what said state constitution and precedents say. If the decision is for gay marriage, it’s activist, and whatever the court did to get there is activism. Once you recognize this fact, you can read today’s opinion (and the instant criticism of the opinion) for what it is: Even though the majority did what it was supposed to do and offered up a rigorous close reading of state law and precedent, it will be defended and also criticized solely in terms of judicial elitism and overreaching. That’s too bad. There’s some pretty interesting law stuff in here. But the only real fight that emerges from today’s Supreme Court decision (all but one of the justices was appointed by a Republican governor, incidentally) is over what makes a judge an activist and who can properly say “nyah, nyah, nyah” come November.

Given that no majority opinion allowing for gay marriage could ever have been crafted that would not have been excoriated as the work of “arrogant, elitist, activist judges,” judicial anxiety over that fact dominates both the opinion and dissent. The justices start off on the defensive and somehow get more defensive from there. Whether this makes for quality opinion writing is yours to decide.

Those opposed to gay marriage were already calling today’s decision “activist” long before they’d read all 172 pages of the opinion. Alliance Defense Fund lawyer Glen Lavy quickly opined that “the court’s decision clearly demonstrates that marriage is not ultimately safe from tampering by activists and others in government until the voters have amended the constitution.” Brian Brown, executive director of the National Organization for Marriage-California, went one further with the judge bashery: “[T]hese out-of-touch California judges will not have the last word on marriage. … A state marriage amendment is the only way to put Prop 22 safely from the reach of activist judges who cannot tell the difference between marriage and bigotry.”

All of that plays right into John McCain’s latest cut-and-paste rant about how “the moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it.” If Sen. McCain wants to take a moment to explain the difference between “making” and “applying” the law, I am all ears.

The opinion itself is teeming with the court’s own anxiety over the public perception of judicial activism. The majority begins with a plea to recognize that the judges in the majority are not activists: “Whatever our views as individuals with regard to this question as a matter of policy, we recognize as judges and as a court our responsibility to limit our consideration of the question to a determination of the constitutional validity of the current legislative provisions.”

The word activist itself appears just once today—in a concurrence and dissent by Justice Marvin Baxter, who doesn’t call his colleagues activists but worries about their grandchildren: “Who can say that in ten, fifteen, or twenty years, an activist court might not rely on the majority’s analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?”

Not to be outdone as the winner of the “I am not an activist” Olympics, Justice Carol Corrigan opens her dissent with the announcement that she is so not an activist that even though she personally believes that Californians “should allow our gay and lesbian neighbors to call their unions marriages,” the court nevertheless overstepped its bounds in striking down the state marriage laws. Writes Corrigan, “[T]he principle of judicial restraint is a covenant between judges and the people from whom their power derives. … [I]f there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”

Justice Corrigan’s model of judicial restraint is not quite constitutional originalism or even John Roberts-style minimalism. Like Baxter, she espouses some kind of shabby-chic jurisprudence in which state statutes endure a constitutional distressing process that allows them to become more and more constitutional over time. Standards and values can change, she allows, but only when the people have lived with those changes for some set period of time. It’s not so much that the majority is “activist,” therefore. Their real problem is that they are somehow “tacky.”

My own vote today is with the governor, who’s smart enough to realize both that activism is an empty label, and that when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what’s constitutional. Moreover, he seems to understand the difference between judicial activism and judicial action, and the fact that the latter is not something for which a court needs to apologize.