Bush’s Legal Logic

The social conservatives at Team Bush take aim at “activist judges.” Welcome to the legal fun house.


In the days after the Massachusetts high court handed down its ruling in support of gay marriage, conservatives latched onto the issue with a fervor. And, in the decision, they found an easy and increasingly familiar enemy: “Activist judges.”
Even a formerly reluctant Bush joined the fray, declaring in his State of the Union that “activist judges … have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

Now, of course, the pundits are declaring that gay marriage could be a defining issue in the 2004 presidential contest. Dahlia Lithwick, writing on Slate, sums it up nicely, predicting “the fight over gay marriage will polarize this nation in ways that will make the abortion rights battle fade to a happy memory.”

Lost in all the rhetoric, however, is an important question. Just how “activist” are the judges in question? And should a clearly activist president and an even more activist group of congressional Republicans hijack an issue which even conservative legal scholars argue is best left to the states?

In fact, the last two weeks offered a mixed bag of judicial decisions for gay, lesbian, bisexual families. While the Massachusetts Supreme Judicial Court clarified and strengthened its earlier ruling, a federal court upheld a Florida law banning adoptions by gays and lesbians. Social conservatives, naturally, reviled the first and hailed the second. Defenders of federalism, meanwhile, found reason for hope in both.

The Massachusetts highest court issued its clarification as an answer to the state legislature, which had asked whether Vermont-style civil unions would be enough to satisfy the court’s earlier ruling, ‘Goodridge v. Department of Public Health.’ The court answered that only full marriage was acceptable, noting in its majority opinion that

“The history of our nation has demonstrated that separate is seldom, if ever, equal…The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status….”

As with the original ruling, the justices based their clarification on due process and equal protection principles. And, like the original ruling, the clarification drew quick and heated responses. Right on cue, Massachusetts Governor Mitt Romney, a Republican, wrote in a Wall Street Journal commentary last week that people should

“beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature’s job to pass laws. The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the constitution…It is not the job of judges to make laws….”

But is that really what the justices are doing in this case? Matt Foreman, director of the National Gay and Lesbian Task Force, says it clearly is not.

“This decision does not represent ‘judicial activism.’ Instead, this truly American decision is part of a 200-plus year tradition of our courts interpreting the law and fulfilling the constitutional promise of equality for all.”

Still, Romney’s response highlights the increasingly urgent game of legal tennis being played by courts and lawmakers in several states. In Massachusetts, legislators will meet this week to debate a constitutional amendment defining marriage as “a union between a man and a woman.” Of course, any amendment approved by the convention would still have to be adopted by state voters. And that wouldn’t happen until 2006, leaving same-sex marriages legal in the meantime.

In New Jersey and Arizona, courts have seen lawsuits similar to the one prompting the Massachusetts decision, followed by legislative debate over same-sex partnerships. New Jersey courts denied the gay plaintiffs’ challenge late last year, but the state legislature passed a domestic partnership bill, which its governor signed last month. In Arizona, a similar court challenge to the state’s anti-gay marriage law also failed in October 2003, but it inspired legislative discussion of a state constitutional amendment barring same-sex marriage. Plaintiffs appealed the case to the state’s supreme court, while the amendment has stalled.

Meanwhile, lawmakers in 16 states are considering measures banning same-sex marriage, including constitutional amendments in Georgia, Oklahoma, Kentucky and Michigan. Last Friday, Governor Bob Taft signed Ohio’s “defense of marriage act,” widely considered to be the most restrictive of similar anti-gay marriage laws in other states. The act makes Ohio the 38th state with a law defining marriage as “one man, one woman.” A handful of state legislatures, including Vermont’s, are looking at bills granting rights to same-sex couples.

The flurry of state legislative activity makes it likely that the legality of same-sex marriage will eventually be decided at the federal level, either in Congress or in the Supreme Court. Bush and his conservative allies are clearly eager to push the former possibility, with the president vowing to endorse a
federal marriage amendment, one version of which already has 100 Congressional cosponsors, according to Time.
But some legal experts argue that the patchwork of state laws regarding same-sex marriage, along with the 1996 federal Defense of Marriage Act, will eventually force the Supreme Court to get involved. Last week, Robert Siegel of National Public Radio spoke with Northwestern University law professor Andrew Koppelman about hyptothetical court cases that might arise after same-sex marriages are legal in Massachusetts.

Siegel: …the [federal] defense of marriage act could prove problematic sooner, because you could live in Massachusetts and be a federal civil servant, or receive social security, and the federal government would refuse to acknowledge your same-sex marriage in Massachusetts.

Koppelman: That’s right. So, I would expect that some issue is going to arise immediately if same-sex marriage is recognized in Massachusetts and someone who is a federal employee enters into a same-sex marriage and they immediately want health insurance for their spouse. Well, under the defense of marriage act, you can’t give them health insurance for their spouse, because under federal law they’re not married. I would think you’d get lititgation immediately.

Meanwhile, in a far less publicized case two weeks ago, a federal court ruled that Florida has the right to ban adoption by openly gay, lesbian, and bisexual people. The Atlanta-based 11th U.S. Circuit Court of Appeals ruled against four gay men, all foster parents or legal guardians of children, who in 1999 brought a lawsuit with the American Civil Liberties Union to overturn the nation’s only blanket ban on gay adoption. The ban, passed in 1977 during the campaign of beauty queen/anti-gay crusader Anita Bryant, had already weathered several legal challenges at the state level, according to the non-profit Human Rights Campaign.

According to the Washington Blade, the court ruled that adoption is a state-granted privilege, not a right guaranteed by the U.S. Constitution’s equal protection or due process clauses. In the decision by the court’s three-judge panel, Judge Stanley Birch wrote:

“Adoption is not a right; it is a statutory privilege…The state of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who ‘engage in current, voluntary homosexual activity’…and we have found nothing in the Constitution that forbids this policy judgment…. ”

The ruling frustrated those who hoped last summer’s Supreme Court ruling in ‘Lawrence v. Texas’ would change the way courts viewed the law. According to FindLaw columnist Joanne Mariner,

“The Eleventh Circuit’s ruling last week is one of the first post-Lawrence cases to address such questions. In upholding Florida’s discriminatory adoption law against an equal protection challenge, the court disappointed anyone who expected Lawrence to bring about a sea-change in the courts’ treatment of anti-gay restrictions.”

Critics of the adoption ruling have charged that the Florida law is contradictory and hypocritical. Columnist Michael Mayo noted that one of Florida’s justifications for excluding gays from adoption was that children should be married heterosexual couples instead. However, the state often lets single heterosexual people adopt.

“Bush and the bureaucrats at [the Department of Children and Families] talk a good game about wanting to place kids in homes with married couples, but singles are encouraged to adopt. And according to revised guidelines put in place last year, married couples no longer get preference over singles, who account for 25 percent of the state’s adoptions. The DCF’s new written policy is to select adoptive parents based on those who can meet the “physical, emotional, social, educational and financial needs of a child.”

A Miami Herald editorial notes that “while the state prevents gays from adopting children, it allows them to carry out all parenting functions as foster parents and guardians, which, if nothing else, is proof that the state policy is a sham.”

But is it a state sham? That, of course, is the defining legal issue, both in Florida and Massachusetts. And, as Lithwick opines, there are compelling legal and political arguments to be made in favor of allowing Massachusetts, Florida, Ohio, New Jersey, and every other state set the rules it wants, keeping the matter out of Washington altogether.

It’s a truism to say that one of the great beauties of federalism is that states can act as mini-social-laboratories. If Massachusetts wants to recognize gay marriage, let ’em. If Ohio wants to ban them, have at it. It’s precisely because marriage has always been reserved to the states to regulate differently that a federal constitutional amendment is so silly. But it’s even sillier for the president to make a fool of himself by amending a document that mostly gives him what he wants already —- a way to keep one state from foisting its will on the others.

Not that a federalist solution will keep the GOP from rolling out its “activist judges” rhetoric, of course. After all, in the increasingly ideological logic of Team Bush, judges automatically become activists as soon as they strike down discriminatory laws or uphold equal protections.