The Role of Judges in Democracy: How Much is Enough?

Gay Marriage has been hailed as the latest rung in the aspiration for civil rights. It has also been used rhetorically as evidence that social mores have become anarchist; evidence that the world is no longer slouching, but on a run-away train toward Gemorrah.

Last Month the Iowa State Supreme Court unanimously ruled that the State must recognize same sex marriages under that state's Constitution. But it went beyond that. The Iowa court said "Basic fairness" requires that same-sex couples be afforded the same rights as couples who marry of opposite genders.

California's Supreme Court came to a different conclusion earlier this week. In California, the Court affirmed a propositional amendment to that state's Constitution restricting the definition of marriage to opposite-sex couples. That Amendment was enacted by majority rule of California voters last November.

While the media generally likes to concentrate on the trivial aspects of the juxtaposition of these decisions: Heartland Iowa takes a liberal view and sophisticated California taking a more Conservative approach the two opinions play on the nature of courts and the role judges in a democratic society. Specifically, what role should they have in balancing civil rights against majority rule.

There are some parameters we all agree on, or at least the vast majority. A proposal reinstating slavery would be viewed as beyond the pale. So would an amendment restricting inter-racial dating or a law providing that only Christians could be elected to public office. But with Propostion 8, it has become a legitimate question as to if there is no law specifically speaking to a rule, can the public invoke law at will? For instance, can the public in California prohibit circumcision, a requirement of Judaic and Muslim faith, on the grounds that it is cruel to children? Could the public forbid illegal immigrants from seeking medical care for non-emergency procedures?

The conventional wisdom from the various media is that Iowa's Court displayed a pragmatism of an aspiring middle America while California's court was hopelessly out of touch with the times. Putting aside the media's general sympathy towards liberal positions (excepting talk radio), the facts on the ground are a bit more fuzzy.

There is already a grassroots effort in Iowa to overturn that Court's decision by means of a Constitutional amendment in a similar vein to what a majority of California voters did last November. Iowa does not allow propositions to the Constitution in the way California, does but the issue will likely come up in the State legislature. Meanwhile in California the Court's decision almost read like an apology to the Plaintiffs.

The California Court made a narrow ruling. It said that gays who were married prior to the election of Proposition 8 would remain married because "it would be unfair and might even invite chaos to nullify marriages those couples entered into lawfully."

California's Supreme Court did not decide whether gay marriage is proper or not, it simply deferred to the democratic process.

In essence, this leads to all other sorts questions. Should civil rights ever be subject to majority rule? Should a Constitution be able to be amended by the mandate of a majority of votes? If civil rights and the Constitution is subject to what a majority of what citizens says it is, what is the purpose of even having a judicial branch of government? What is the proper role of judges?

The simple way of looking at Courts and the philosophy of judgment is by pitting the doctrine of "strict construction" vs. "living Constitution." That is, the idea, that the law is what the law says and what the law says is what was written and what it meant at the time it was written vs. the idea that the drafters of law could not have anticipated what society would be today and the law needs to be interpreted towards the needs and just goals as exist now.

The convention way to look at it is Conservatives are strict constrictionists while liberals believe in a liberal constitution, but in reality it is more complex than that. We saw that last month in a Supreme Court ruling on a 4th Amendment case involving the search of an automobile (see exparte advocate entry of April 23, 2009), the 4th amendment provides very liberal protections and a strict constructionist reading goes against the natural conservative proclivity in favor of deference to law enforcement.

With President Obama's proposal to nominate Judge Sonya Sotormayer to the United States Supreme Court, as a nation, we will be exploring these convergent philosophies over the next few months. While the issues involved are political, they are so much more, they say what we are as a nation, and what we aspire to be. If Judge Sotormayer was on the bench in California how would she have decided the Proposition 8 question before the Court? How active a role do we want judges to take in dealing with societal issues? Should there be a balance? And if so, what should that balance be?