Over at the Daily Signal, scholar Ryan Anderson argues that a Supreme Court decision invalidating same-sex marriage bans would be an example of "judicial activism" and would cause myriad "harms." In so doing, he diverts attention from an important priority that all defenders of limited government ought to share: Insisting that the Court perform the duty of judicial review without extending unwarranted deference to the political branches.
The term "judicial activism" has always been problematic. It was initially deployed by progressive jurists who saw reflexive judicial deference as a means of enabling comprehensive social and economic reforms that the Constitution had been (properly) interpreted to thwart. Later, conservative jurists appalled by the Warren Court's recognition and protection of rights not expressly listed in the Constitution's text would adopt the term. In both cases, the concept was not well-defined and was primarily used to discredit particular decisions rather than to promote reasoned discussion about constitutional meaning.
According to Anderson, activism "occurs when judges decline to apply the Constitution or laws according to their original public meaning or ignore binding precedent and instead decide cases based on personal preference." His definition suggests a deliberate, willful transgression, not an honest mistake. Thus, in arguing that that any decision to invalidate marriage bans would be an example of judicial activism, Anderson implicitly charges any justices (or scholars) who might disagree with his understanding of the Fourteenth Amendment with bad faith. Given his emphasis on the virtues of constructive, reasonable disagreement on the question of how to define marriage, it is curious that he seems unwilling to entertain the possibility of reasonable disagreement concerning what the Constitution has to say about it.
Anderson's preoccupation with activism leads him to miss out on a crucial point that all defenders of limited government should be able to agree upon: The Court should make an independent determination of the constitutionality of the challenged marriage laws, rather than reflexively deferring to the political branches. In the same-sex marriage case, Obergefell v. Hodges, no less than in any other case, judicial engagement is required if the political branches are to be held to the terms of the Constitution. In all constitutional cases, judges should seek to determine whether there is a rational, evidence-based justification for the government's actions, grounded in a constitutionally legitimate end of government.
In the opinion that is now before the Court, the Sixth Circuit Court of Appeals upheld a series of same-sex marriage bans, explaining that the states' marriage laws could rest on "rational speculation unsupported by evidence." Judge Jeffrey Sutton brushed aside fact-finding by lower courts. He stated that the government may treat people differently based on naked preferences for politically powerful groups, specifically citing "nepotism" as a legitimate basis for government action.
As the Institute for Justice argued in its amicus brief, it is difficult to imagine a piece of legislation that would not pass muster under this toothless application of the "rational basis test" -- the default standard of review in constitutional cases. The Sixth Circuit's approach would render the many constitutional protections subject to rational-basis review entirely meaningless -- everything from the right to earn an honest living to the right to own property to the right to try potentially life-saving medicine. For the Court to take this approach in Obergefell would be an abdication of judicial responsibility.
Rather than making baseless accusations of judicial activism, defenders of limited government should insist upon judicial engagement in every constitutional case. Regardless of our views about same-sex marriage, we should be able to agree that reasonable disagreement about the meaning of the Constitution is possible and adjudication by speculation harms our constitutional order.
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