OK, let me clear something up for y'all in the wake of the smackdown Judge Vaughn Walker dealt to California's Proposition 8 restricting gay marriage. Walker based his ruling on the obvious 14th Amendment grounds - the denial of marriage rights to gay couples was a violation of both equal protection and due process. The equal protection argument seems so blindingly obvious to me that I'm surprised a judge hasn't used that one yet against gay marriage bans (though it was used against the federal DOMA by a MA judge last month, though that ruling also - awesomely - referenced the conservatives' favorite amendment, Number 10). But hold this thought for a second.
Across the country, Virginia AG/demagogue Ken Cuccinelli is clearing hurdles for his lawsuit against the individual mandate to purchase health care that was a centerpiece of the recent health care system reform bill passed back in March. I don't know about whether this case will succeed or not - my gut tells me it won't, mainly because the courts have had an insanely expansive view of the Commerce Clause over the last few decades - but the judge's ruling allowing the suit to proceed is consistent with the unique nature of a federal law requiring individuals to participate in interstate commerce.
The point I'm trying to make is this: critics of both rulings, while hailing from opposite political poles, will make essentially the same argument. You shouldn't overturn legislative acts, they'll say. A majority of citizens or their duly elected representatives voted for it, they'll say. They'll whine about activist judges and say runaway courts are trying to ruin America.
And they'll all be wrong.
See, it doesn't matter if 52% of a state's citizens voted for a law. It doesn't matter if 221 Representatives and 56 Senators approved it. It doesn't matter how well it polls or how much good it does. If it violates the Constitution, it is a judge's solemn duty to invalidate the law. And this applies equally to the gay marriage bans, the federal DOMA, and the individual health care mandate.
Whining about "activist judges" ignores one important principle - we don't live in a pure democracy. We live in a constitutional democracy, and in a constitutional democracy the majority doesn't always get its way. Those words in that constitution have to mean something. It doesn't matter how popular censorship is, say: the Constitution says you can't do it. It doesn't matter how popular gay marriage bans are, and it doesn't matter how much good can be done by an individual health care mandate. If it's unconstitutional, you can't do it.
And guess what? Judges are better positioned to make those calls than we are. That's why we have a system that gives knowledgeable, sharp legal minds the power to compare laws to the Constitution. And if we disagree with the results of a ruling - whether it's the gay marriage ruling, the health care ruling, Citizens United, whatever - we can't be so quick to dismiss it as illegitimate. Judicial review - unfriendly folks call it "activism" - is a well-respected and perfectly legitimate power granted to judges. Rather, let's debate these rulings on the grounds they ought to be debated on - is the judge's interpretation of the Constitution correct?
In the case of gay marriage, I think the judge is correct. You're free to disagree in the comments. But if anyone whines about "activist judges," or thinks that the outcome is less legitimate because it came from a judge instead of a vote, I'm ignoring them and so should you.