Judicial activism and Individual Rights

Obviously I think the California Supreme Court’s ruling on same-sex marriage is the correct outcome. I’ll leave the legal analysis of how the Court got there for others to judge. Still, this is an interesting, positive development.

I wish to comment on one factor that will appear in the coming weeks, and will probably quickly grow within the presidential election. Many will claim judicial activism, as if that’s a valid claim. Our courts do not exist to rubber stamp any and every rule a legislature can dream up. Enforcement is the Executive’s job. The Judiciary must interpret. Bowing to the mythical “will of the people” gets us no closer to the truth than waiting for a new constellation to appear in the sky with the correct outcome spelled in the stars.

An Andrew Sullivan reader wrote this to Mr. Sullivan:

The decision is an arrogant, impatient one. My gay friends are impatient, and I understand their impatience. But the Court should have trusted the people.

It was only a matter of time. A democratic consensus, based on reason and persuasion, is much better for everyone, in all the states, in the long run.

Mr. Sullivan responds with the perfect rebuttal:

Yes, and it has been building. But a republic is not just a democracy. It is a confluence of constitutions, laws, legislatures, executives and courts. In 1948, the California court ruled against miscegenation bans. It took three decades for that act of “judicial activism” to gain consensus nationally.

Exactly. And constitutions are first. Where the laws of the legislature violate that, the courts must reject the laws. Anything else is mob rule.


This fits into the discussion on how civil law should treat medically unnecessary circumcision of male children in America. The procedure is ethically and scientifically flawed. It should not be permitted. Legislatures have already shown an willingness to exclude male children from this protection acknowledged for every other American. Democracy (i.e. mob rule), with a nod to social and religious justifications before individual rights protected by constitutions, should prevail, some say. What parents want is worth defending because altering the healthy genitals of their male children is their choice. It is a right that supersedes the rights of the child, both in individual religious freedom and bodily integrity/freedom from harm.

The political side of the issue is an unprincipled, anti-constitutional mess in America. The concept of individual liberty is lost. The court’s role is to uphold constitutional protections for every individual. It is critical to defend the rights of the minority against the tyranny of the perceived majority. Where tradition and social expectations conflict with individual rights, tradition and social expectations have no merit. The role of the court is to set these legal excuses aside in favor of individual rights. This is not activism.

Courts are not infallible. Yet, as Mr. Sullivan’s example shows, society has a way of catching up to the “activism” of courts, with an eventual understanding that wisdom and logic demanded the outcome. History will show that with same-sex marriage. It will show that with medically unnecessary child circumcision. The former before the latter, but the day for both will arrive.