Same-Sex Marriage and "Judicial Activism"

With the recent hue and cry about the California Supreme Court's ruling in favor of same-sex marriage, one would be inclined to believe that the foundations of American society are about to crumble, bringing the entirety of this nation with it. However unlikely this may be, it hasn't stopped social conservatives from invoking every sort of pseudo-argument and quasi-rationale around which they can latch their feeble intellect.

Judicial Activism

It's judicial activism.

Judicial activism, defined, is:

Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, . . . as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.

Schiavo v. Schiavo, D.C. Docket No. 05-00530-CV-T-27-TBM (11th Cir., 2005) (Birch, J., concurring).

Understood in the context of this issue, "judicial activism" is merely a euphemism for whiny, petulant tantrums thrown by those who didn't get their way.

The court's opinion makes extensive reference to the Calif. Constitutional guarantees at issue (pp. 48-49). The court also makes fairly extensive reference to Calif. case law which establishes a de facto right to marry. Where the U.S. Supreme Court has articulated privacy as an element of marriage (e.g., in Griswold v. Connecticut, 381 U.S. 479 (1965)), and the plaintiff's claims are in part based upon their right to privacy, it is the individual right to privacy that is ultimately at issue (1st, 4th, 5th, and 9th Amendments). The court also references other constitutional guarantees such as the right of association (1st Amendment), the right to enter into contracts (a core element of English Common Law), and the fundamental guarantees for which process is due ("Liberty," in this case).

Most notably, the Calif. Supreme Court finds the right to marry as inherent in the right of self-determination, personal autonomy, and individual liberty. Which is refreshing given the recent judicial trend that subjugates the individual to the will or needs of the greater good (however irrationally the "greater good" may be articulated).

Privacy as an Inherent Liberty

But the U.S. Constitution doesn't guarantee a right to privacy.

Privacy is a basic element of liberty. It's been understood to be an inherent part of liberty since our founding. The 1st Amendment guarantees us the privacy of our thoughts—our thoughts and our words are a private domain into which the government cannot enter. The 4th Amendment allows the people "to be secure in their persons, papers, and effects," which is about as succinct a statement of the embodiment of privacy as I've heard.

Privacy is the result of the court making things up from the "emanations" and "penumbras."

The oft-maligned "penumbras" and the "emanations from the penumbras" is a very real, if not murky area of the law. The issue arises specifically because of the 9th Amendment. Because the Founding Fathers realized that it would be disastrous to attempt an exhaustive iteration of the basic rights of liberty retained by the people, the realized that it was necessary to place what amounts to a caveat in the Bill of Rights that, by default, vests all liberty interests in the people.

The U.S. Constitution was the means to construct a minimal government and secure the maximum liberty to "we the people," with the possession of individual liberties retained by "we the people," not the government. Properly understood, the government must show why a right does not exist or may not be held by the people. Otherwise that right is inherent in our "life, liberty, and pursuit of happiness."

Aside for the mental meanderings of some busy-bodies and nosy types, I have yet to see any rational basis to justify the government invasion of the private sphere of who we decide to love and share the intimate parts of our lives. Marriage is a civil contract, pure and simple. And those who have the capacity to enter into a civil contract should be able to do so. Religious components of marriage are set by the various sects. And the religious sects are free to make whatever rules they choose.

The Canard of Unelected Judges

But judges are just unelected tyrants.

Judges personal decisions go against the will of the people.

For good or ill, we have a system of government that establishes a judiciary to check a legislature driven by the pure emotive will of the majority.

To the extent that one would posit the same-sex marriage ruling as simply the work of "unelected judges," the apparent conclusion is that the decision should only be made by one who is elected. In that case, please note that the California legislature voted twice to legalize same-sex marriage. That makes the argument about "unelected judges" a moot point. However, for those who are still opposed to California's institutionalizing of same-sex marriage, the decision has to then simply become "the will of the people" which—for good or ill—is merely mob rule. Just as a benevolent dictator is still a dictator, the rule of the mob (however benevolent) is still mob rule.

Congress can pass a law making it illegal to speak. But the judiciary can "interpret" the law and strike Congress' actions down as unconstitutional. Or for better illustration, Congress can pass a law stating that it is illegal for people of different races to marry. So long as Congress sits on its hand and does nothing, the law remains. So long as the will of Congress refuses to change the law, the law remains. The same goes for segregated schools. Had we waited for legislators to end segregation it would not be ended--in fact it still exists in Alabama where segregation laws are still on the book because legislators have not had the political will to repeal the law.

Yet a court can end an entire institution of injustice in one fell swoop.

For the record, I don't support mob rule in any fashion. I support the Rule of Law and the philosophical foundations that have given rise to our constitution and government, complete with an independent judiciary.

Slippery Slopes and Straw Men

Gay marriage will lead to people marrying their children or their pets.

I have actually been asked: "Do you think a father should be allowed to marry his daughter?"

It's an interesting question. But it conflates a number of issues and is akin to asking "have you stopped beating your wife?" The question conjures up images of a fatherly figure and his precious teenage daughter engaged in copulation, which makes just about anyone uncomfortable. However, the question is not as simple as that and the analysis of the answer changes depending on the circumstances of the daughter (age, mental capacity, etc.).

Should a father be allowed to marry his daughter? Generally no. But not for the reasons you would assume. The daughter, assuming she is underage, does not have a legal capacity to enter into a contract. Nor does an animal, which is why people can't marry their pets (hat tip to Sens. Santorum and Cornyn). Polygamy/polyandry are separate issues addressed in a separate context (Hefner and his Bunnies).

But back to the original question: Should a father be allowed to marry his daughter? As a simple contractual matter, assuming the daughter has the legal capacity to enter into a contract (over 18, mentally competent, no coercion), the answer is "yes." Entering into a contract does not entail engaging in sex, no matter how vehemently one would wish to impute that it does.

I'm not advocating father/daughter marriage at all. I don't even necessarily approve of it (the thought creeps me out a bit). But I would be hard pressed to make a case in opposition to it.

Should a father be allowed to have sex with his daughter? If the daughter is under the age of consent, is mentally incapable, or under duress or coercion (e.g., gun to her head) then the obvious answer is "no." But we already have laws that prohibit these actions (laws prohibiting sex with minors, laws prohibiting sex with the mentally deficient/incapacitated, laws against rape). Also, it's obviously not a good thing because of the implication of genetic defects and all. A marriage contract won't make father/daughter incest any more or less likely.