Viewpoints: New kind of judicial activism on gay marriage

For many Californians, the U.S. Supreme Court’s refusal to review the appeals by five states of lower court rulings overturning their traditional marriage laws has an unsettling sense of déjà vu.

In June 2013, the high court also declined to rule on the constitutionality of California’s Proposition 8, the 2008 ballot measure approved by 7 million voters, which engraved the traditional definition of marriage into the state constitution. The high court stated that Proposition 8 proponents had no “standing” to appeal a lower-court ruling against the measure, even though state officials charged with defending it refused to do so. Thus, the voices of millions of Californians were not even allowed to be heard in court.

Now, the will of millions of additional Americans is being swept into the dustbin of history. Thirty-one states have a law or constitutional amendment restricting marriage to one man and one woman. In almost every state where the issue has been put to popular vote, the people have supported traditional marriage. In the 19 states and the District of Columbia where same-sex marriage has been legalized, most of the decisions were made by courts, a handful by state legislatures.

With the Supreme Court’s refusal to review the appeals of Utah, Virginia, Oklahoma, Indiana and Wisconsin, same-sex marriage will be now be allowed in these states, as well as six others under the jurisdiction of the federal circuit courts that overturned state bans. These other states also support traditional marriage, but will now be forced to live under the court rulings. With its inaction, the Supreme Court has in essence silenced those Americans’ voices and undermined a fundamental democratic right.

The high court’s refusal to act represents a new form of judicial activism – the activism of inaction.

Such a monumental societal change as redefining marriage is now being made, not through the front door of our republic – with laws enacted by elected officials or by a direct vote of the people – but through the back door by a handful of unelected judges.

The reason these cases rose to the Supreme Court in the first place was to decide this question: Do state laws prohibiting same-sex marriage violate the U.S. Constitution?

Yet, that decision was never made – not for Proposition 8, or for the other states that appealed. Thus, same-sex marriages will now be allowed without the high court ever having ruled on the core question of whether the Constitution includes a right to gay marriage.

Some same-sex marriage advocates may be breathing a sigh of relief on that point, as even friendly justices would be hard-pressed to excavate such a right in the Constitution. Proponents claim that the “equal protection” clause guarantees everyone’s fundamental right to marry. But the issue is not about equal rights, it’s about redefining marriage.

Another troubling outcome of the high court’s inaction is that it undermines state authority over marriage laws. Yet the court itself used state law as the underpinning of its 2013 ruling in United States v. Windsor. In that case, the court overturned a provision of the federal Defense of Marriage Act – ruling that gay and lesbian couples married in a state where same-sex marriage is now legal are entitled to the same federal benefits as married heterosexual couples.

The whole premise of the Windsor decision was based on the right of a state to legalize same-sex marriage. Yet by refusing the hear appeals from states that have prohibited same-sex marriage, the court ignored the same right of those states to pass marriage laws.

Underscoring the serious implication of this apparent double standard, many of the lower-court rulings have used Windsor’s rationale to overturn state bans, while those states will now not even be allowed their day in court.

One silver lining is that by not ruling, the court did not set a legal precedent. So, technically, lower courts are still free to rule as they see fit. Several more cases are currently pending in federal circuit courts, and the issue may eventually end up back in the Supreme Court.

By then, though, societal and legal chaos would likely ensue. Thus, muddling up the process with selective court action and inaction will likely impose a desired outcome on the people – by judicial fiat.

No matter what one’s view on same-sex marriage, we should all be concerned with the sidestepping of legitimate democratic processes designed to protect our freedoms and our right to self-government.