by Matt Barr

This is "activism"

Thanks to the Pope, there's been a lot of recent navel-gazing about what "relativism" is, but for quite a few years now the debate has percolated, what is "judicial activism"? In typical fashion, the left defines it as "anything I disagree with," and since there's usually no talking to those people and it doesn't really matter in the end, that's fine. But "activism," like Mr. Justice Kennedy's brand, involves setting policy that should be left to the legislature by way of reversing or repealing an act of the legislature the court disfavors.

Like this, via Prof. Volokh. How can you tell it's baldfaced activism? Because it includes nonsensical, do-you-ever-listen-to-yourself reasoning you sometimes find on liberal blogs but not often, thankfully, from federal courts. Like this: Nebraska's same-sex marriage ban

is tantamount to denial of access to the means to effect any sort of social or political change. The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would enhance same-sex partner’s rights (including awarding benefits, allowing adoption, etc.) must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population is ever likely to surmount.

Volokh notes in his post, which you should read, that contrary to the court's protestations this opinion if correct would require every state to recognize same-sex marriages. Its reach would be even more pervasive, if not so obviously off base. Section 1.06 of the Ohio constitution provides:

There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime.

The knowledge that any proposed legislation advocating slavery violates the Ohio Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would institute involuntary servitude must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population, such as pro-slavery persons, is ever likely to surmount.

Since I doubt we'll be repealing state constitutions' bans on slavery, or cruel and unusual punishments, or protections for free speech, I think we can conclude with some certainty that the court is taking a side in the same-sex marriage policy debate and favoring it over 70 percent of the voters in Nebraska.

Which, I hasten to add, is surely not necessarily an argument in favor of the constitutionality of the Nebraska amendment. It's elementary that 95 percent of more voters in a state or subdivision may favor and enact legislation that the constitution prohibits. But the idea that a constitutional amendment is improper because it chokes off the possibility of passing laws that are contrary to that amendment is quite a thin veil for a court's advocacy of certain policy outcomes.

Volokh deals with all the court's arguments, not just the First Amendment one, and notes, especially in his new gig on the Huffington Post, that

The big winners from this will be the anti-same-sex marriage forces. There's enough public opinion against same-sex marriage already, among many Democrats as well as Republicans. But my sense is that voters will be even more strongly opposed to federal judges forcing on them a change to a fundamental social institution. And this wouldn't be just state judges setting up their own rules for liberal Hawaii, Vermont, and Massachusetts -- it would be a federal judge striking down opposite-sex-marriage only laws enacted by a 70%-30% vote. The "gays deserve equal treatment" argument will gain nothing from this decision. The "federal judges are forcing blue-state social values on the whole country" will gain plenty.

I think that's probably right. (Readers probably don't remember but can verify from my archives that I thought the Ohio constitutional ban on same-sex unions was farcical and contemptible, so I am not myself in favor of Nebraska's amendment.) This decision is likely to be Roper writ large, because same-sex marriage is much closer to the top of our national cultural conversation than executing capital convicts who were 17 when they committed their crimes.

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