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Conservatives Crying Wolf

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Conservatives' cries of outrage in response to the California Supreme Court's recent decision recognizing same-sex marriage were as shrill as they were predictable. William Kristol accused the court of "ma[king] social policy from the bench." Dinesh D'Souza characterized the decision as a "legal fraud," having "little to do with constitutional reasoning and everything to do with an assertion of political power." Hugh Hewitt, a lawyer himself, wrote menacingly about "another judicial putsch" and "[c]ourts unbound by any sense of limits, by any sense of restraint."

These stale allegations of "judicial activism" -- a term generally devoid of any useful meaning -- are particularly inapt here. As others have noted, the justices on the California Supreme Court are initially appointed by the governor, but thereafter must be reelected in order to keep their positions. California's legislature also twice passed bills legalizing same-sex marriage, only to see them vetoed by Gov. Arnold Schwarzenegger. And Gov. Schwarzenegger's very reason for vetoing the bills was that "the matter should be determined not by legislative action . . . but by court decision."

Though conservatives may pretend otherwise, there was thus no cabal of unelected, power-hungry judges here, seeking to impose their moral views on California by judicial fiat. What happened, rather, was that a group of duly appointed and reelected judges decided a case in accordance with the legislature's wishes and as explicitly requested by the governor. D'Souza and Hewitt should be ashamed of themselves for throwing around terms like "legal fraud" and "judicial putsch" to describe what is actually a fairly remarkable consensus among all three branches of California's government.

Another problem with the conservative critique is that it never explains why the California Supreme Court's decision was wrong on the merits. Chief Justice George's majority opinion was not some kind of policy manifesto that same-sex marriage should be allowed because he thinks it is a good idea. The opinion, rather, was an exceedingly thorough, 121-page, quintessentially legal document. It first read existing California precedents as creating a fundamental right to marry the person of one's choice. Once acknowledged, said the court, this right cannot be limited to heterosexual persons only. The opinion then pointed out that California's statutes on marriage distinguish between opposite-sex couples (who are allowed to marry) and same-sex couples (who are not). According to the court, these distinctions are subject to strict judicial scrutiny -- which they cannot survive since they actively harm same-sex couples without providing any compensating benefit to opposite-sex couples. "[T]he retention of the traditional definition of marriage does not constitute a state interest sufficiently compelling . . . to justify withholding that status from same-sex couples."

The predominant conservative response to this detailed legal analysis has been -- silence. Do Kristol, Hewitt, and their ilk disagree that California case law recognizes a right to marry? Do they think the court defined this right at an inappropriate level of generality? Should discrimination on the basis of sexual orientation not be subject to strict scrutiny? Is California's interest in retaining the traditional definition of marriage weightier than the court concluded? We simply have no idea. All we know is that most commentators on the right have been so hasty to brand the decision as "judicial activism" that they have failed even to argue that it was wrong.

To be fair, a few conservatives have halfheartedly engaged with the opinion's actual reasoning -- but their efforts to date have been laughable. D'Souza, for example, criticizes the court for "appeal[ing] to the equal protection clause of the Fourteenth Amendment." But the court plainly did not do so. Even a cursory glance at the opinion shows that it was based solely on California's own constitution, not the federal constitution. Ed Whelan, meanwhile, pulls out the old slippery slope in response to the opinion's reliance on the right to marry the person of one's choice: "Is there anything . . . that would prevent [that right] from being invoked by, say, practitioners of adult incest or plural marriage?" As the court made clear, the answer is obviously yes. "[T]he state continues to have a strong and adequate justification for refusing to officially sanction polygamous or incestuous relationships because of their potentially detrimental effect on a sound family environment." Whelan's only riposte is to insultingly suggest, against all available evidence, that homosexual relationships are equally harmful to families.

Right-wing bluster about "judicial activism," of course, is nothing new. But my hope is that just as tired conservative tropes about appeasement and patriotism are steadily being discredited in the foreign policy context, so too will the bogeyman of activist judges soon be exposed as the fraud that it is.