Opponents of the Iowa Supreme Court ruling that invalidates the state's anti-gay marriage law have invoked a popular rhetorical tool used to challenge court opinions: "Judicial activism." RNC Chair Michael Steele, for example, describes the ruling as "another example of judicial activism currently threatening family values in America." Conservative Ed Whelan posted an essay on the National Review Online which argues that the ruling proves that: "The lawless judicial attack on traditional marriage and on representative government continues." Republican State Representative Roy Blunt of Missouri opines that: "The Iowa Supreme Court chose today to legislate from the bench by redefining marriage without any concern or deference to the democratic process. . . ." Conservative blogger Rod Dreher at Beliefnet contends that "gay marriage" was "forced on Iowa." Finally, a Des Moines Register article quotes various same-sex marriage opponents who argue that the Iowa Supreme Court "stepped out of its proper role," "redefined[d] marriage," and "advance[d] an agenda the majority of Americans reject."
Don't Believe the Hype: Judicial Activism Is an Utterly Empty Concept
Judicial activism is an utterly empty concept. Contrary to its deceptive connotation, the phrase does not articulate a real theory of judging. Instead, judicial activism is simply a rhetorical device used by individuals across the political spectrum who wish to bash courts for invalidating statutes they find desirable. If a person does not favor a particular law, he or she will not describe a court's invalidation of such law as an awful moment of judicial activism.
Claims of judicial activism are commonly associated with conservatives who fear "liberal" (or "elite") judges imposing their views upon a more moderate or conservative society. But liberals have also complained of overzealous judges defeating democracy. Indeed, one of the most highly criticized eras in the history of the Supreme Court began at the turn of the 20th Century when conservative free market justices liberally construed the Fourteenth Amendment and recognized a constitutionally protect right of "economic liberty."
During the so-called "Lochner Era," the Supreme Court used the concept of economic liberty to invalidate over 200 state and federal laws that regulated the economy and the health and safety of workers and the public. This pattern continued up until the New Deal -- after which the Great Depression, turnover in the Court's personnel, FDR's vitriolic criticism of Court rulings, and a "switch" in one justice's position on the subject ushered in a new era of judicial deference on economic issues.
More recently, conservative federal judges have invoked the ambiguous concepts of federalism and state sovereignty in order to impose drastic limits on the operation of federal statutes, particularly in the area of civil rights. Yet, conservatives did not blast the Rehnquist Court for its "activism."
The Iowa Supreme Court Simply Applied the Law
The Iowa Supreme Court's ruling is steeped in constitutional analysis. One can disagree with the analysis, but that does not transform the ruling into something other than analysis.
Although the outcome of the case turns on the meaning of the Iowa constitution, much of the ruling discusses federal constitutional law regarding the meaning of equal protection. The Iowa Supreme Court held that denying same-sex marriage constitutes a form of "sexual orientation" discrimination. Even though the statute does not mention sexual orientation, it is patently clear that only gays and lesbians seek to enter into same-sex marriages (if not, we would see heterosexuals filing suit).
The Iowa Supreme Court then applied well established precedent and determined that because sexual orientation discrimination deviates from the state constitutional norm of equal protection, it could not engage in a deferential analysis of the state's reasons for banning gay marriage. Court's make these types of choices every day.
Although courts typically defer to lawmakers, when legislators use their authority to invade fundamental liberties or to discriminate on an improper basis, then judicial review is by necessity more invasive. Otherwise, constitutional freedoms would have very little meaning.
The Iowa Supreme Court invoked the same doctrinal concept of "rigid" judicial scrutiny that has allowed conservative judges to invalidate affirmative action policies, strike down a portion of the Violence Against Women Act, limit the ability of civil rights plaintiffs to recover damages from illegally behaving state governments, and to reverse a state court ruling grounded in statutory law, which ordered the Boy Scouts of America to stop discriminating on the basis of sexual orientation. If conservatives do not believe that the Iowa Supreme Court has the authority to overturn laws that violate the state constitution, then they must condemn conservative court rulings that invalidate statutes that implement liberal policy.
How About a "Real" Debate
Unlike many other progressives, the concepts of federalism and separation of powers do not threaten me. Indeed, these concepts have advanced progressive causes. Pointing to the separation of powers doctrine, liberal judges have deferred to legislatures and validated their efforts to remedy civil rights violations. And while southern states invoked "states' rights" rhetoric to justify slavery and secession, states have also invoked this concept in order to defy conservative federal policy on matters ranging from fugitive slaves, the environment, and criminal justice. Perhaps conservatives could find their "voice" in contemporary United States politics if they had the courage and creativity to view the Iowa ruling, for better or worse, as an exercise of state autonomy that traditional conservatives should respect.
The debate over the Iowa ruling, however, must not rest on the empty concept of judicial activism. If people disagree with the substance of the court's decision, they should debate the ruling on its own terms. Resorting to politically charged and bankrupt rhetoric will not advance discourse on this important subject.
Related Reading on Dissenting Justice: Iowa Supreme Court Strikes Down Gay Marriage Ban
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