Jag Logo
STAY INFORMED

Judicial Activism and The Fight to Defend Traditional Marriage

Marriage is a simple policy issue that, according to the Constitution, is properly decided by the people and their elected representatives. Unfortunately, some courts have in recent years attempted to legislate from the bench and, thereby, make major changes to state and federal laws defining marriage.  Through these rulings, the democratic system has been repeatedly circumvented as judges arrogantly and unconstitutionally disregard the will of the people.  In their eagerness to establish new laws re-defining marriage according to their own personal political preferences, these unelected judges have trampled the voice of the people who have often spoken quite clearly by establishing, through Constitutional means, laws protecting the sanctity and exclusivity of marriage in the United States.  Below at “Marriage Cases” are several examples of court rulings which have unduly and unconstitutionally altered the laws or meanings of laws regarding marriage.

As JAG succeeds in our mission of judicial renewal, activist decisions attempting to dismantle traditional marriage will decline.  They will instead be replaced with the laws and constitutions established and constantly adapted by an involved and informed citizenry as initially designed by the Founders.  The elimination of judicial activism will not necessarily correspond with the end of the current threat to traditional marriage between one man and one woman.  It will, however, rightly return the battle to the fields of public policy in the legislature where the issue may be properly decided by an entire nation of free men and women rather than dictated by the personal political standards of a few unelected judges.

Marriage Cases:

Baehr v. Lewin in Hawaii.[1]  The battle surrounding definitions of marriage was first introduced into the court system by a 1993 decision of the Hawaii Supreme Court. In Baehr, the court ruled that Hawaii Revised Statute (HRS) § 572-1 was wrong in requiring applicants for marriage licenses to be of the opposite sex and essentially invalidated the law by judicial fiat.  The Hawaiian legislature immediately responded to the court’s intrusion into policy issues by passing an act that again codified marriage as strictly between mixed-sex couples.  The courts, however, continued to entertain the renewed Baehr case, so in 1998 an overwhelming majority (69%) of Hawaiians sent an undisguised reprimand to the meddling Supreme Court by enacting Hawaii Constitutional Amendment 2 which reserves exclusively to the state legislature the discretion to limit marriage to one man and one woman.[2]

Brause v. Bureau of Vital Statistics, in Alaska.[3]  In 1998, Alaska Superior Court Judge Peter Michalski issued a decision where he recognized a recently enacted law defining marriage in Alaska to encompass only the union of “one man and one woman…”[4] and proceeded to rule that the will of Alaskans should be disregarded, not on legitimate Constitutional grounds; but on a new, personally concocted “fundamental right” which attempted to re-define marriage as: “the recognition of one's choice of a life partner…”  Later that year, Alaskans spoke again and decisively corrected the court when 68% of the state approved a ballot measure which amended the Alaskan Constitution to clearly define and exclusively protect traditional marriage in the state.  Initially, the court’s activist decisions had ignored opinions of a substantial majority of Alaskans, thankfully the legislative process prevailed and the decision was rightly overturned on appeal in light of the new Constitutional provision.

Baker v. Vermont.[5]  Baker stands as the first activist decision regarding traditional marriage which the state’s citizens unfortunately accepted as legitimate rather than rebuking their state supreme court for its meddling.  Rather than asking the people of Vermont for their input, the legislature followed the court’s opinion and passed a law providing same-sex couples the same legal rights as married couples through “civil unions.”  In this action the Vermont legislature assisted the courts in commandeering legislative powers and essentially created an environment that encourages similar future usurpations.

Goodridge v. Department of Public Health in Massachusetts.[6] On an incredibly narrow 4-3 ruling in 2003, the Massachusetts Supreme Judicial Court had the unbelievable audacity to author a decision which – in their own words: “marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries.”[7]  As though their judicial usurpation could not have been any more blatant, the court also issued a unique ‘advisory opinion’ instructing the legislature on what kind of law to pass, and ‘ordered’ them to make same-sex marriage legal within 180 days.  The Massachusetts legislature unfortunately bowed to the court’s arrogant and presumptive ‘instructions’, and same-sex marriages continue to be performed in Massachusetts today.

Citizens for Equal Protection v. Bruning in Nebraska.[8]  In a 2005 ruling (fortunately overturned by the Eighth Circuit Court of Appeals the following year), U.S. District Judge Joseph Bataillon boldly attempted to disregard an incredible 70% majority of Nebraskans who voted into existence an amendment to their constitution clearly defining marriage as “a man and a woman”.

Perry v. Schwarzenegger in California.[9]  Currently facing review on appeal, the unconstitutional decision made by a California District court in this case represents the continuing threat that traditional marriage – and the opinion of voters in general – faces from activist judges.  The 2010 decision attempts to circumvent a broad majority of California voters who have now twice directly approved Propositions adding a definition of traditional marriage to their State Constitution.  The first amendment was dramatically discarded by the courts as “Unconstitutional.” Accordingly, liberal lawyers who were frustrated that they could not ‘win’ the marriage issue with voters, even on their home turf of liberal-leaning California, continue to seek a similar disregard of Californian voters through the Perry case.



[1] Baehr v. Lewin 74 Haw. 530, 852 P.2d 44 (1993), reconsideration and clarification granted in part.

[2] The Constitution of the State of Hawaii at Article I: Bill of Rights, Section 23 provides that “The legislature shall have the power to reserve marriage to opposite-sex couples.“

[3] Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Court 1998).

[4] BILL CITATION.  The legislation also denied the benefits of marriage to same-sex relationships and refused to recognize same-sex marriages from other states and nations. Full text follows.  “Marriage is a civil contract entered into by one man and one woman...A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state...A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage."

[5] 744 A.2d 864 (Vt. 1999).

[6] 798 N.E.2d 941 (Mass. 2003).

[7] Id.

[8] 368 F. supp. 980 (D.Neb. 2005), reversed by 455 F.3d 859 (8th Cir. 2006).

[9] 704 F.Supp.2d 921 (N.D.Cal., Aug. 4, 2010).