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Judicial “Activism”


Anderson v. King Sims–the case discussed by Dave below–can be read in its entirety here. It’s actually worth reading. It’s lucid and relatively short.

Progressives should familiarize themselves with this and similar rulings, because reactionary opponents of the decision will inevitably describe it as radical “judicial activism.” In fact (particularly for a superior court decision) is very well-reasoned and carefully argued. In addition to being a straightforward application of substantive due process (a doctrine which, whether one agrees with it or not, is supported in some form by every member of the United States Supreme Court), the Washington state law banning same-sex marriages was also held to violate the “privileges and immunities clause” of the Washington State constitution. Article 1, § 12 reads:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

Unfortunately, a similar clause in the 14th Amendment of the United States Constitution was gutted in of the USSC’s worst decisions. But for a Washington state judge, that’s irrelevant. And given its language, the case is relatively easy. The burden of proof plainly belongs on those who would explain why the privilege of civil marriage can be given in an discriminatory manner. While reasonable people can disagree with this decision, to argue that it’s lawless policy judgment is just abject nonsense. The legal arguments are not just plausible but very strong.

By the way, here’s how upset King County’s chief executive is with the decision:

King County Executive Ron Sims, a defendant in the lawsuit, said the ruling was a powerful affirmation of equal rights. “I think marriage is an incredibly wonderful institution and that people who love each other should be allowed to be involved in it,” Sims said. When first urged to issue marriage licenses to gay couples, Sims said he wouldn’t do it because the licenses wouldn’t have any legal meaning in a state that didn’t recognize him. But he invited the couples to sue.


Those activist courts, usurping the ironclad will of elected officials! Note especially the last sentence. Anybody who thinks that legislation represents coherent policy preferences on cross-cutting, highly salient issues has a conception of politics less sophisticated than a Grade 6 civics textbook. Do you think George Bush gives a shit about Goodridge? The “judicial activism” rhetoric is a game, a way to dodge responsibility for tough issues.


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