‘Judicial Activism vs. Democracy’ Ignores U.S. History, Role of Courts

A March 3 Senate subcommittee hearing on the topic of same-sex marriage has been dubbed “Judicial Activism vs. Democracy” by subcommittee chairman Sen. John Cornyn (R-TX). People For the American Way President Ralph G. Neas said the hearing description “smacks of crass politics” and “shows either a stunning ignorance or calculating disregard for the crucial role of the courts in protecting and promoting equality in America.”

Statement by People For the American Way President Ralph G. Neas

President Bush and Senator Cornyn have added their voices to the chorus of Religious Right leaders complaining that the justices on the Massachusetts Supreme Judicial Court were out of line when they ruled that their state’s constitution does not permit discrimination against same sex-couples seeking to marry. The majority of justices have been vilified as “judicial activists” who had no right to make such a ruling. But applying the state’s constitutional principles to its laws is exactly what those justices were supposed to do. That is their job.

American history is replete with examples of judges and courts moving the nation toward justice, often before legislatures were ready to do the right thing. Courts ruled against segregated schools and other public facilities at a time when segregation had widespread support. In 1967, the Supreme Court overturned state laws that prohibited couples from getting married if they were not of the same race. Looking back now, we can hardly believe those laws were still being enforced in the late 1960s.

It is true that the Massachusetts ruling has sparked controversy and intense public debate. That debate reflects both changing attitudes toward support for full legal equality for gay men and lesbians and some continuing resistance to equal marriage rights. This spirited discussion is another reason not to rush to give discrimination constitutional permanence.

Democracy is alive and well in Massachusetts. Citizens and legislators are engaged in a vigorous debate about marriage and their state’s constitution. Similar debates are taking place around the country. A federal amendment would put an end to those debates and prohibit any state’s citizens, legislators, or courts from moving toward full equality for same-sex couples and their families.

A federal anti-marriage amendment would tarnish the U.S. Constitution, the foundation of our freedom. It would strike a blow against freedom and against the legacy of generations of Americans who fought to extend the promise of equality under the law to every American.

People For the American Way supports full legal equality for gay and lesbian Americans, including full marriage equality for same-sex couples. The affiliated People For the American Way Foundation filed an amicus curiae brief in the Massachusetts case urging the state’s Supreme Judicial Court to uphold equal marriage rights for same-sex couples, as it did. For more information, see www.pfaw.org.