In his radio address of June 3, 2006, President Bush advocated for a US Constitutional amendment to prohibit the state recognition of the marriages of same-sex couples. He stated:
Decisions about such a fundamental social institution as marriage should be made by the people—not by the courts. The American people have spoken clearly on this issue, both through their representatives and at the ballot box…. Unfortunately, activist judges and some local officials have made an aggressive attempt to redefine marriage in recent years.
In this statement, President Bush proposed that the nature of marriage, including the prohibition of same-sex marriage, should be defined statutorily through legislative action or determined by the outcome of popular initiatives and constitutional amendments. In his view legislative action, popular initiatives and constitutional amendments allow the popular will to be expressed, either indirectly or directly, through electoral mechanisms. In contrast are the actions of “activist judges and some local officials” that apparently thwart the preferred policy of the elected representatives or the expression of popular will embodied in popular initiatives and constitutional amendments.
Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political systemFootnote 1 and the idea of judicial independence,Footnote 2 President Bush's statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments?
Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President Bush's 2006 statement, I will argue that, with some rare exceptions, judges can not easily be identified as activist on the issue of same-sex marriage even if we assess their actions according to President Bush's limited criteria.Footnote 3 Instead, the evidence confirms the existing political science research on judicial acquiescence to recent legislative action, particularly by those courts at the highest point on the judicial hierarchy.Footnote 4 In a few states it did appear that it was the legislature, rather than the courts, that was the acquiescent institution on this policy issue. Yet even this evidence is consistent with political science research, for recent scholarship on legislative deferral argues that advantages accrue to legislators by deferring to courts on policy issues that incorporate the potential to disrupt their existing, carefully crafted political configurations.Footnote 5 In what follows I will demonstrate that the evidence simply does not support the view that the courts consistently countermand majorities and thus contravene democracy.
At the State Level
If the “representatives” in President Bush's June 2006 statement are state legislators and the “ballot box” is a reference to statewide votes on constitutional amendments or popular initiatives, the record of state courts on the same-sex marriage issue is complex. Even with the limited criteria established by President Bush's statement, the determination of whether state courts exhibited apparent judicial activism that thwarted the popular will of the moment depends a lot on how you think about the actions of state court judges in relation to a) initiating litigants, b) their respective state legislatures, c) other state legislatures, d) recently and not-so-recently passed statutes, e) successfully passed legislative bills that are subsequently vetoed by a Governor, and f) the outcome of popular statewide votes in contrast to state legislative actions.
Here, I lay out eight scenarios—based on real situations that have occurred over the last forty years of the same-sex marriage movement—to consider in determining if state court judges possibly were “activist' on this issue. Obviously, the current discussion of possible judicial activism occurs completely independently of any consideration of the constitutional role of courts within each state's political system. To aid in understanding the timing and actions of state legislatures and state courts, table 1 summarizes the statutory and constitutional position of states on same-sex marriages and civil unions between 1990 and 2005 and beyond, as well as the judicial action for the same period.
The statutory and constitutional position of states on same-sex marriage and judicial action, 1990–2009
1 Article 1, Section 23 of the Constitution of Hawaii does not in fact automatically preclude same-sex marriage, but it does allocate the power over this issue to the state legislature and presumably away from the state courts. It reads: “The legislature shall have the power to reserve marriage to opposite-sex couples.”
2 California passed a law in 2003 (Stats 2003 ch 421) that altered the California Family Code (Cal Fam Code § 297.5 [2004]) in order to equalize state-related legal benefits and obligations between registered domestic partners and recognized married couples. Although the law did not take effect until January 1, 2005, the state legislative action on this law occurred in 2003.
The ability to litigate same-sex marriage claims
Between January 1, 1990 and December 31, 2005, court cases directly on the constitutionality of same-sex marriage occurred in fourteen states, in chronological order: Hawaii, New York, Alaska, Vermont, Arizona, Massachusetts, New Jersey, Oregon, Washington, California, Indiana, Maryland, Connecticut, and Iowa.
There were no court cases directly on same-sex marriage involving a state court in thirty-six of the fifty states in this period. If the state legislatures in any of these thirty-six states altered their existing marriage statutes to either preclude or endorse same-sex marriage and civil unions during this time, they did so without the direct prompting of a state court in their own state.
It is largely accepted that the decision of individuals to litigate the issue of same-sex marriage in the fourteen states prompted legislative action in many of the remaining thirty-six states. But, as is evident from table 1, the response of state legislatures reflected the inherent ability of state legislators to largely set their own agenda and determine their own timing on when to confront new policy issues.
California initially altered their marriage statutes in 1977, and Maryland followed suit in 1984, in response to the first wave of same-sex marriage cases that were filed by gay activists in Minnesota, Washington, Kentucky, and New York starting in 1971.Footnote 6 The second wave of same-sex marriage litigation, which began with the filing of a case in Hawaii in May 1991,Footnote 7 prompted many, but certainly not all, state legislatures to introduce new statutes defining the state's policy position in relation to the recognition or celebration of same-sex marriages. Interestingly, the act of litigating on same-sex marriage did not always prompt a legislative response in the very state in which the litigation was occurring (as will be discussed later).
If the definition of “activism” is that the involvement of state courts in the fourteen states that faced litigation over same-sex marriage forced other state legislatures to engage this issue, then state courts were “activist.” The activism of the judges in this context occurs simply because litigants were allowed to file cases on this issue in some state courts, independent of any subsequent decision by the judges on the relative merits of the claim. Remember, states first began changing their statutes on marriage in response to the filing of the subsequently unsuccessful same-sex marriage cases in the 1970s. Further, many state legislatures in the 1990s changed their state statutes on marriage before a single court, including the state courts in Hawaii, had ruled in favor of the introduction of same-sex marriage.
The problem with this definition of activism is that courts, unlike legislatures, have only limited control over the issues they face. By their very institutional design, it is the choice of litigants to file cases that largely determines both the issues and timing of judicial action: “Courts must act when litigants call.”Footnote 8 And, on the issue of same-sex marriage, litigants first called upon state courts between 1971 and 1974 and they began calling again with greater regularity in the early 1990s to the present (refer to table 1).
Political scientists have long noted that the act of litigating is both an inherently political actFootnote 9 and a sign of a perceived problem with an existing policy.Footnote 10 Social movements, including the same-sex marriage movement, have identified the initiation of litigation within the public forum of the courts as a means to promote public awareness of the relevant issue and lay claim to it.Footnote 11 It can force institutions to publicly articulate the logic for maintaining an increasingly problematic legal normFootnote 12 or it can begin the process of de-naturalizing a formerly accepted social norm.Footnote 13 Even litigation that is subsequently unsuccessful can act to highlight the presence of a social movement for purposes of movement-building and facilitate it in negotiating power relations among the relevant institutional actors.Footnote 14
However, for the current purposes, the framing by President Bush of judicial activism implies that judges directly and actively thwarted legislative preferences. The fact that the institutional characteristics of courts allowed litigants in some states to initiate cases on same-sex marriage does not seem to meet the necessary requirements for this definition of judicial activism. If there is a claim of judicial activism trumping legislative preferences or the popular will at the state level, we would probably expect to find it primarily in the fourteen states where courts actually acted on same-sex marriage. And, so I now turn to focus on those fourteen states.
The ability to litigate in the absence of an expressed legislative preference
State courts in seven of the fourteen states with same-sex marriage litigation became engaged with the issue of same-sex marriage prior to their respective state legislature articulating a formal policy position through statute. This selection bias did not occur by chance; lawyers or pro-se litigants purposely targeted states in which there existed no explicit statutory or constitutional restriction of same-sex marriage at the time of filing.Footnote 15 Thus, the cases filed in Hawaii in 1991, New York in 1996 and 2004, Vermont in 1997, Massachusetts in 2001, New Jersey in 2002, Oregon in 2004, and Connecticut in 2004 were each initiated prior to the introduction of any statute clarifying the position of the state legislature on same-sex marriage in the respective state.
Beyond the earlier noted problem of equating the ability of litigants to initiate legal action with judicial activism on the part of state court judges, the current scenario does not appear consistent with the notion in President Bush's statement that courts were actively thwarting expressed legislative preferences. In these seven states, the state legislatures had not explicitly expressed any preference on this issue at the time of the filing of the litigation.
It is worth noting that it is difficult to entirely rationalize the continued absence of expressed legislative preferences at the time of court involvement as simply a failure of the state legislators in these seven states to realize the possibility that same-sex marriage might one day become a legal or political issue. First, state legislators had been aware of the issue of same-sex marriage since the first wave of same-sex marriage cases that were brought in Washington, Minnesota, Kentucky, and New York between 1971 and 1974. The fact that the legislators in two states, California and Maryland, successfully altered their marriage laws in 1977 and 1984, respectively, to proscribe same-sex marriage is evidence enough that many state legislators were cognizant of this issue in the 1970s and 1980s.Footnote 16 In the early 1990s, individual state legislators in some states introduced legislative bills on same-sex marriage even before the first case of the period was initiated. For example, House Bill 2684 aimed at prohibiting same-sex marriages was introduced into the Texas House of Representatives on March 8, 1991—a full fifty-four days prior to Baehr v Lewin Footnote 17 being filed in Hawaii on May 1, 1991.
Second, at any point in time after the announcement of the opinion of the Hawaii Supreme Court in Baehr v Lewin in early May 1993, it is difficult to argue that state legislators were not aware that same-sex marriage was now actively back on the policy agenda. For example, in March 1995, state legislators in Utah altered their states laws in direct response to a pending judicial decision in Hawaii on same-sex marriage. By the time the Circuit Court of Hawaii actually announced their decisionFootnote 18 in support of same-sex marriage on December 3, 1996, twelve other state legislatures had also successfully altered their marriage statutes within the preceding year to preclude the recognition or celebration of same-sex marriages in their respective state. A further eight state legislatures would shortly follow suit in 1997. And, so on. In fact, no state court would be successful in actually realizing the introduction of same-sex marriage or an equivalent until December 20, 1999, when the Vermont Supreme Court prompted the state legislature in Vermont to introduce civil unions in that state from June 2000.
Notwithstanding the fact that lawyers for lesbian and gay rights groups tended to target states without explicit statutory restrictions on same-sex marriage at the time of filing, no state or federal court during this period ever held that the omission of a state legislature to initially restrict marriage explicitly to opposite-sex couples could now be construed as a de facto endorsement of same-sex marriage.Footnote 19
The state legislature continues to express no preference on same-sex marriage despite the presence of a case pending before their courts
Often lost in the very obvious wave of state legislative prohibitions of same-sex marriage after 1993 is that fact that four state legislatures—New York, Massachusetts, Vermont, and New Jersey—did not act even as state courts in their state publicly prepared to rule on this issue. There exist two versions of this legislative inactivity. In each version, state courts eventually rendered decisions in the ongoing absence of any statutorily expressed legislative preference about same-sex marriage.
The first version of legislative inaction occurred in Massachusetts and New York. It involves complete legislative inaction on the issue of same-sex marriage throughout the entire period. Notwithstanding their lack of an existing statutory or constitutional restriction, the state legislatures in Massachusetts and New York never introduced a single statute on same-sex marriage—either precluding or endorsing it—during the period from January 1, 1990 through December 31, 2005. Same-sex marriage occurred in Massachusetts after May 17, 2004 solely through judicial order rather than legislative action.
Like the first version, the second version involves legislative inaction on same-sex marriage before and throughout the extended judicial process. Yet, in the second version, the state legislature eventually acts at the direct behest of their state courts. The state legislatures in Vermont and New Jersey fit this second version. Each state legislature only addressed this issue when explicitly directed to do so by their respective state courts. Prior to the announcement of an opinion by the state's highest court, each state lacked any statutory or constitutional restriction or endorsement of same-sex marriage or civil unions.
In each of the two versions, the lack of state legislative action is hard to attribute to a failure of legislators to appreciate that the policy issue might be decided by courts in the absence of legislative action. For example, New York's state legislature managed to avoid creating any statute on same-sex marriage throughout the period despite the fact that it faced litigation on two separate occasions. The first litigation occurred in 1996 with the case of Storrs v Holcomb Footnote 20 and the second set of litigation in 2004 is characterized by the cases of Hernandez v Robles Footnote 21 and People v West.Footnote 22 Moreover, the Solicitor General of New York officially opined in early 2004, as a second set of court cases on same-sex marriage were being initiated in the state, that same-sex marriages performed in other jurisdictions would be legally recognized in the stateFootnote 23 and that it was possible that same-sex marriages were required by the state's constitution.Footnote 24
Even if they failed to act prior to the initial filing of a claim, there was sufficient time in each of these four states—New York, Massachusetts, Vermont, and New Jersey—for legislative action during the long judicial process before a final decision was announced by the state's highest court in each case.Footnote 25 For example, from the date of the very public filing of the case, the Vermont Supreme Court spent 2.4 years (or 881 days) processing their same-sex marriage case before announcing a final decision.Footnote 26 Similarly, the Massachusetts courts spent 2.6 years (or 951 days) processing their same-sex marriage case before announcing a final decision.Footnote 27
At any point during the lengthy judicial process, it would be possible for a state legislature to attempt to resolve this issue by statutory action. An apt example of such legislative action occurred in Connecticut. The Connecticut legislature passed their Civil Unions LawFootnote 28 in 2005 during the early days of that state's same-sex marriage case.Footnote 29 The legislature acted, without judicial prompting, presumably to allow them to determine their preferred policy on this issue. Similarly, during the course of their own same-sex marriage case, the state legislature in Hawaii acted both through statute and by facilitating a constitutional amendment to allow them to define their preferred policy position.
One possible explanation for the legislative inactivity in New York, Massachusetts, Vermont, and New Jersey in the face of pending court decisions can be found in the recent literature on legislative deferrals to courts. Lovell argues that “some legislators may not care how judges resolve the controversy so long as judges take the blame for contentious and potentially unpopular decisions.”Footnote 30 If this was the goal of state legislators, they partially failed.
In three of the four states, the majority opinion of the highest court to rule on their respective same-sex marriage case asked the state legislature to make some determination of the form of the constitutionally-required recognition of the relationships of same-sex couples. In Vermont and New Jersey, the legislatures subsequently introduced civil unions. In Massachusetts, the failure of the legislature to respond within a set time period led to the introduction of same-sex marriage through judicial order pursuant to the original case holding. In the fourth and final state, New York's highest court held that it was purely the prerogative of the state legislature, not the state courts, whether to recognize same-sex marriages.
If the definition of “activist” is that state courts, already involved by litigants' demands in the issue of same-sex marriage, rendered decisions in the ongoing absence of any legislative action, then courts in these four states would be defined as activist. However, returning to the framing by President Bush, it is problematic to categorize the actions of these judges as effectively thwarting the respective state legislature's preferences when the legislature in question appeared clearly unwilling to set a policy direction—at least, until they are forced to do so by a court decision. Instead, we might identify these four cases as examples of legislative deferral in which state “legislators instead invite, or at least tolerate, judicial policymaking because they cannot (or do not want to) reach a coherent collective agreement to establish a particular policy outcome.”Footnote 31
The idea of an initial legislative deferral to the courts in these four states is supported by the fact that the legislatures in each of these states eventually acted in some form to facilitate the decisions of their respective state courts (refer to table 1). For example, in April 2009, the Vermont legislature acted to transition from the civil unions it had introduced in 2000 to statutorily introducing same-sex marriage. In July 2008, the Massachusetts legislature revoked a 1913 law that restricted couples from many other jurisdictions from marrying their same-sex partners in Massachusetts. The state legislature in New York has twice passed bills in its state assembly for the introduction of same-sex marriage since the 2006 New York Court of Appeals decision. And New Jersey has engaged in active legislative discussions over the introduction of same-sex marriage since their own state court decision in 2006.
A state legislature continues to express no preference on same-sex marriage and the state courts do not act on the issue despite the fact that a court in another state finds that the first state likely recognizes same-sex marriages from their jurisdiction
Like its counterparts in New York and Massachusetts, the legislature in Rhode Island also failed to act on same-sex marriage throughout the period from January 1990 through December 2005. Unlike those states, Rhode Island did not face any direct litigation on same-sex marriage within the state during this period.
However, in late 2006, a Massachusetts court ruled, based on Rhode Island's existing statutes, that Rhode Island did not explicitly prohibit same-sex marriages.Footnote 32 Therefore, the court held that Rhode Island presumably recognized such marriages if they were celebrated in Massachusetts and the Rhode Island residents subsequently returned to their home state. The primary effect of the court decision was to clarify a (later abolished) statutory restriction in Massachusetts on the celebration of marriages by non-residents. This ruling allowed such non-residents from Rhode Island to marry in Massachusetts. As of the time of writing, state courts in Rhode Island have not commented on this finding by a Massachusetts court.
The current scenario might, at first glance, be mistaken as a judicial decision in one state determining the policy of another state. If a state court were truly to act in that manner, it would clearly meet President Bush's criteria of judicial activism. In point of fact, the Massachusetts courts' ruling fails to thwart the (unexpressed) preferences of the Rhode Island legislature and the people of Rhode Island because the courts' ruling itself did not determine Rhode Island's policy. It is obviously not legally binding upon Rhode Island courts or legislature in any way. Instead, it simply determined the interpretation in Massachusetts of Rhode Islands' existing statutes for purposes related solely to a law then in effect in Massachusetts.
It is difficult to identify the current action as thwarting the expressed legislative preferences of the legislature of Rhode Island because the ruling of the Massachusetts court is not binding upon it in any way. Nor does it restrict its future legal or statutory options. In that context, it is difficult to define it as an example of judicial activism under President Bush's criteria, notwithstanding any general perception of the ruling.
The state's highest court to hear their same-sex marriage case rules in the same direction as the most recently expressed legislative preference
The highest state courts, when confronted with a recently expressed preference of the legislature, ruled in the same direction as the most recently expressed legislative preference in six states. In Arizona, Indiana, Washington, Maryland, California, and Connecticut the highest state court in the respective state to express a position on same-sex marriage rendered a decision that was perfectly consistent with most recent position on same-sex marriage expressed by the majority in the state legislature.
An intermediate state court in Arizona in 2003 upheld the right of the state to preclude same-sex couples from the benefits of marriage.Footnote 33 The direction of the decision was consistent with the fact that the state legislature had passed laws in 1996 to prohibit the celebration of same-sex marriage within the state as well as its recognition from another jurisdiction.Footnote 34 The state legislature had demonstrated no subsequent change in that position by any of its actions and the court simply validated their policy position in its decision.
Similarly, in May 1997, the State of Indiana passed into law a restriction of the gender of the two parties to marriage such that marriages between same-sex couples were precluded from being recognized by the state.Footnote 35 In response to a claim by three couples for the State of Indiana to recognize their civil unions issued by the State of Vermont, the Indiana Court of Appeals upheld the state's statute.Footnote 36 The court found that heterosexual couples were dangerously prone to producing children and therefore their procreative tendencies needed to be regulated by state law, including marriage. In contrast, same-sex couples were unlikely to procreate by chance and they therefore could and should be excluded from marriage. The strange and convoluted logic in this opinion, which reverses the traditional argument made by states concerning procreation and same-sex couples, allows the Indiana court to subsequently render a decision consistent with the expressed preference of the legislature.
Washington's state legislature successfully introduced a Defense of Marriage Act in 1998 after two earlier unsuccessful efforts in 1996 and 1997, which were each vetoed by the Governor. When same-sex marriage cases were initiated in March 2004, this Defense of Marriage Act represented the state legislature's most recent expression of its policy preferences on same-sex marriage.Footnote 37 The Washington Supreme Court in 2006 confirmed the constitutionality of this statute.Footnote 38 And, the opinion of the Washington Supreme Court explicitly defers the decision on the future possibility of same-sex marriage to the state legislature—“We see no reason, however, why the legislature or the people acting through the initiative process would be foreclosed from extending the right to marry to gay and lesbian couples in Washington.”Footnote 39
Maryland altered their marriage statutes in 1984 to limit marriage to opposite-sex couples.Footnote 40 In 2007, the Maryland Court of Appeals supported the constitutional right of the legislature to restrict marriage in this manner.Footnote 41 The court's majority opinion, delivered twenty-three years after the state legislature's most recent expression of preferences on the issue, did end on the proviso that the Court's “opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the right to marry a person of the same sex.”Footnote 42
Connecticut and California represents the most interesting examples of these six states. Connecticut's legislature introduced civil unions in April 2005 shortly after a same-sex marriage case was initiated in the state.Footnote 43 Three years after these civil unions began, the Connecticut Supreme Court ruled in October 2008 that the state was obligated, under state constitutional principles, to provide full access to marriage for same-sex couples.Footnote 44 The court's decision was directly influenced by the legislature's decision to introduce civil unions. Explicitly noting the legislative statements of many of the state's legislatorsFootnote 45 as well as the fact that the Civil Unions Law reflected a legislative compromise with an “unprecedented” restriction in terms of Connecticut state statutes,Footnote 46 the court's majority opinion proceeded to endorse same-sex marriage as the appropriate state response to the recognition of same-sex couples. Overall, the Connecticut Supreme Court decision is consistent with the general direction of the most recent expression of legislative preferences, even as the decision offers a legal logic for transitioning the terminology from civil unions to marriage.
In California, Proposition 22, a statewide popular initiative passed in 2000, precluded the recognition or celebration of same-sex marriages. This initiative was consistent with an earlier statute introduced by state legislative action in 1977.Footnote 47 Yet, by 2008 when the state's highest court directly addressed same-sex marriage for the first time, the most recently expressed policy position of the state legislature reflected neither the position expressed by the popular initiative of 2000 nor its former statutory counterpart from 1977.
In 2003, the California state legislature had successfully passed a billFootnote 48 authorizing the equivalent of civil unions, which were introduced in January 2005. In September 2005, the state legislature passed a billFootnote 49 authorizing same-sex marriages, but this latter bill was subsequently vetoed by the Governor. The Governor stated that he would prefer that the state courts determine this issue.Footnote 50 And, again in September 2007, the state legislature successfully passed a new billFootnote 51 authorizing same-sex marriages, which was also vetoed by the Governor for identical reasons to its 2005 counterpart.
On May 15, 2008, the Supreme Court of California judicially ordered the State of California to recognize same-sex marriages.Footnote 52 In its ruling, the court specifically noted the successful passage of the bills supporting same-sex marriage as well as the Governor's veto messages related to these bills in 2005 and 2007.Footnote 53 Further, it considered that the logic of its decision was consistent with the expanding set of rights accorded to same-sex couples in recent years by the state's legislature.
If judicial activism is defined as thwarting the most recently expressed preferences of the legislature, it is hard to identify the actions of the highest state court to express a position on same-sex marriage in Arizona, Indiana, Washington, and Maryland as engaging in judicial activism. These courts each ruled consistent with the most recently expressed preferences of the majority of the legislature. And the relative age of the legislative action did not seem to matter. These courts ruled consistent with the legislative expression of preferences whether those preferences were expressed within a decade of the court decision, as in Arizona, Indiana, Washington, California, and Connecticut, or within the last 25 years of it, as in Maryland.
The real difficulty in assessing the level of potential judicial activism arises in the case of California where the most recently expressed preferences of the legislature, embodied in the successful passage of bills in 2003, 2005, and 2007, contradicted the earlier preferences of the state's population as evidenced by the outcome of a popular initiative from 2000. Returning to the earlier statement of President Bush on judicial activism, he stated that “the American people have spoken clearly on this issue, both through their representatives and at the ballot box.” In the case of California, the direction articulated by the actions of people's “representatives” was not the same as the direction earlier articulated by the people's own actions “at the ballot box.” It appears, in fact, that the “people” in California actually did not speak “clearly” on the issue.
Setting aside for the sake of argument the force of the legal precedents that clearly shaped the outcome of their judicial opinions, the final direction of the California Supreme Court's 2008 decision appeared to prioritize the preferences of the state's legislature over the result of a vote in a popular initiative. Yet, the Court's response could also be identified as consistent with the last expression of popular will to be made prior to the Court's decision. The most recent expression of the popular will, as embodied in the more recent legislative actions, trumps the earlier expression of the popular will, as embodied in the more dated results of the 2000 popular initiative. This latter perspective—the latest articulated expression of popular will determines the direction of the highest court' position—appears to be borne out by the fact that, in May 2009, the California Supreme Court upheld the outcome of the 2008 popular initiative,Footnote 54 which was the most recent expression of popular will on this issue by Californians.
If we define judicial activism as thwarting the most recently expressed preferences of the majority in the legislature, the actions of California's highest court on same-sex marriage in 2008 cannot easily be identified as judicial activism. But, if we define judicial activism as thwarting a dated popular vote, the actions of California Supreme Court on same-sex marriage in 2008 appear to meet President Bush's stated criteria for judicial activism.
More recently, the May 2009 California Supreme Court decision endorses the constitutionality of the second popular initiative on same-sex marriage while maintaining the 18,000 same-sex marriages that had been celebrated in the state prior to the statewide referendum in November 2008. Using President Bush's criteria, it is difficult to classify the 2009 decision as judicial activism, given the recognition that the court, in order to avoid thwarting the popular will, was required to reconcile the two mutually exclusive positions—the position of the legislature and the position of the 2008 popular initiative—that represented the most recent expressions of popular will in California at that point in time.
The highest court to hear a state's same-sex marriage case allowed a recent state constitutional amendment on the issue to determine the subsequent judicial decision
In Hawaii, Alaska, and Oregon, the highest state courts to hear their same-sex marriage cases respectively held that the outcome of the case was determined by a recent state constitutional amendment on same-sex marriage. In Alaska and Oregon, a constitutional amendment restricting same-sex marriage was introduced in response to the initial ruling of a lower state court and the state constitutional amendment took effect before a final determination was made by the state highest court.Footnote 55
In Hawaii, a constitutional amendment authorized the state's legislature to determine the state's position on same-sex marriage, which it subsequently restricted by statute.Footnote 56 The state constitutional amendment in Hawaii took effect before a final determination on the constitutionality of a lower court ruling in support of same-sex marriage could be made by the state highest court.Footnote 57
The state Supreme Courts in Hawaii, Alaska, and Oregon each ruled in a manner consistent with the popular will, as represented in a recent constitutional amendment achieved through a statewide popular vote. The actions of the highest courts in these states do not appear to thwart either legislative preferences or the preferences expressed in the ballet box by the voters. Consequently, these decisions are difficult to classify as judicial activism using the criteria established by President Bush's statement.
The highest state court ruled in direct contradiction to the most recent expression of legislative preferences
Though Iowa had no state constitutional prohibition of same-sex marriage (as of May 2009), the state legislature had successfully restricted marriage to opposite-sex couples in April 1998.Footnote 58 In April 2009, the Iowa Supreme Court, the highest court in the state, ruled in support of the introduction of same-sex marriages and declared unconstitutional the existing statutory prohibition on such marriages.Footnote 59
The change in the marriage statute, introduced exactly eleven years prior to the court's decision, represented the most recent expression of legislative preferences on the issue of same-sex marriage. There had been no subsequent legislative action or popular initiatives to counter these earlier legislative preferences. In this context, by voiding the existing statute and introducing same-sex marriages, the actions of the Iowa Supreme Court in 2009 appear to meet the criteria for judicial activism established in President Bush's statement in 2006. The court's decision appears to thwart the popular will as represented by the expressed preferences of the legislative branch.
Lower state courts ruled in support of same-sex marriage
There is a possibility that President Bush was not only addressing the actions of the highest state courts in considering evidence of judicial activism, but rather was focused on the rulings of lower state courts. At least one lower state court ruled in support of constitutionally requiring civil unions or same-sex marriages in eight states—Hawaii in 1996, Alaska in 1998, Oregon in 2004, Washington in 2004, New York in 2005, California in 2005, Maryland in 2006, and Iowa in 2007.
In these decisions, there obviously exists the possibility of judicial activism. Yet the successful thwarting of expressed legislative preferences or a popular vote appears to necessitate the ongoing prohibition of the favored policy. At most, lower state courts can only temporarily thwart the popular will because they exist within defined institutional hierarchies. The rulings of a lower court only stand if they are supported by the holdings of a higher court or are never challenged by the parties. In every single same-sex-marriage case involving a pro-same-sex marriage ruling by a lower state court, the ruling of the lower court was challenged by the state and the proceedings focused subsequently on the decision of the state's highest court. The outcomes of these cases in the highest state courts have all been addressed earlier in terms of the possibility of judicial activism. However, there are some additional points worth highlighting in relation to the apparent activism demonstrated by lower state courts.
In Hawaii, Washington, and Maryland, lower state courts invoked state constitutional principles to rule contrary to a statute that had been recently introduced by the state legislature. In Hawaii, the December 1996 decision of a lower state court supporting same-sex marriage contradicted the legislature's preferred policy position as expressed in their successful passage of HB 2312 in May 1994.Footnote 60 Similarly, in Washington, two separate lower state courts in 2004 ruled contrary to the state's Defense of Marriage Act, which the state legislature had passed in 1998.Footnote 61 Finally, in Maryland in 2006, a lower state court initially ordered the state to introduce same-sex marriages.Footnote 62 This decision was in contradiction to a Maryland statute that was passed in 1984. Although the decision in each of these states would subsequently be overturned by the respective state's highest court, the rulings of these lower courts appear to temporarily thwart the most recently expressed preferences of a legislative majority. In this regard, they meet President Bush's criteria for judicial activism, at least for the limited longevity of the effect of their ruling.
In contrast to Hawaii, Washington, and Maryland, the initial lower state court decisions in Alaska and Oregon occurred in the absence of any recently expressed preference by either the legislature or the population. Consequently, it is more difficult to identify these rulings as actively thwarting any recently expressed preferences of the legislature. And, in Alaska and Oregon, when the legislature or population subsequently expressed a preference on this issue, the higher courts acted consistent with that preference. In each state, the highest state court overturned the pro-same–sex-marriage decision of the lower state court in a manner consistent with a recently passed state statute or a recently introduced constitutional amendment, or both.
In the case of New York, the New York Court of Appeals, the highest state court, overturned in July 2006 a lower state court ruling from the year before that ordered, on state constitutional grounds, the introduction of same-sex marriages in the state.Footnote 63 The New York Court of Appeals decision held that the state's constitution did not require the introduction of same-sex marriages and instead left the determination of whether, when and how to act on such marriages to the state legislature. Surprisingly, the New York Court of Appeals' decision finally prompted the state legislature into action on this issue; a state legislature that had steadfastly managed to not explicitly address same-sex marriage in the twenty-five years since the issue was first raised in one of the state's court.
Within eleven months of the 2006 Court of Appeals' ruling, one house of New York's legislature, the New York State Assembly, had successfully passed a billFootnote 64 in support of same-sex marriage. It is interesting that the only expression of preferences by the state's legislature, through June 2007, was both contemporaneous with the 2005 lower court decision and consistent with it. In this context, it is hard to entirely identify the 2005 lower court decision as judicial activism when it occurs initially in the absence of expressed legislative preferences and it is later confirmed to be consistent with such preferences.
In California, the ruling of a lower state court in March 2005 held that the state's restriction of marriage to opposite-sex couples was unconstitutional.Footnote 65 At first glance it would appear that the lower court's action thwarted the state legislature's expressed preference, as embodied in the 1977 statute, and the popular vote represented by the outcome of popular initiative in 2000. Yet, a better indicator of the legislature's preferences can be found in the fact that the state legislature successfully passed a billFootnote 66 in 2003 authorizing the equivalent of civil unions, which began on January 1, 2005. And, in September 2005, six months after the lower state court decision, the state legislature, without any judicial prompting, passed a billFootnote 67 authorizing same-sex marriage. And, as noted above in relation to the actions of the California Supreme Court on same-sex marriage, the current policy position preferred by the legislature need not reflect the policy position expressed earlier in a popular initiative.
It is difficult to identify the lower state court decision as judicial activism when it is consistent with the most recent expression of preferences by the state legislature and the position the lower court adopts is later endorsed by legislative action. Nevertheless, in October 2006, an intermediate appellate court in California reversed the decision of the lower court by referencing the statutory restrictions added by the popular initiative.Footnote 68 And in May 2008, the decision of the intermediate appellate court decision was itself reversed by the California Supreme Court. The regular shifts apparent in the direction of the decision as California's same-sex marriage case rose in the judicial hierarchy between 2004 and 2008 demonstrates well the difficulty in treating lower court decisions as judicial activism of a sort that effectively thwarts the popular will in the long term.
At the Federal Level
If the “representatives” in President Bush's June 2006 statement are the members of Congress, the statement presumably refers to the successful passage in September 1996 of the Federal Defense of Marriage ActFootnote 69 (popularly known as the Federal DOMA). This law sought to prevent the use of the Full and Faith Credit clause of the US Constitution in relation to state recognition of same-sex marriages and it restricted all federal agencies to use a strictly opposite-sex definition of marriage. To date, federal courts have endorsed this legislative action by reaffirming the constitutionality of the Federal Defense of Marriage Act.Footnote 70
The first section of the lawFootnote 71 reads, in part: “No State, territory, or possession of the United States, or Indian tribe, shall be required.” The choice by Congress of the words “shall be required” acknowledged existing legal norms that marriage has historically been within the exclusive power of the states rather than within the purview of the federal government. Consistent with this framing, in one of the rare occasions when federal courts actually addressed the constitutionality of the Federal Defense of Marriage Act, a federal district court judge ruled in 2004 that “the determination of who may marry, however, continues to be exclusively a function of state law.”Footnote 72
It is true that state court judges have mostly ignored this federal law in their judicial opinions regarding same-sex marriage. Instead, these opinions exclusively address the validity of such marriages in relation to state statutes and the state constitutions of the respective state. For example, there is not a single mention of the Federal DOMA in the opinions of the Vermont Supreme CourtFootnote 73 or the opinions of the Massachusetts Supreme Judicial CourtFootnote 74 in each state's same-sex marriage case. Yet, this omission cannot be genuinely defined as thwarting the expressed preferences of Congress since the Federal DOMA itself did not alter in any way the pre-existing state power over the recognition of marriages within their respective jurisdiction.
Only an amendment to the US Constitution could legally alter this exclusive state power. And Congress has shown little interest to date in altering the current power of states on this issue; it failed to pass the proposed Federal Marriage Amendment to the US Constitution in 2004 and again in 2006.Footnote 75
For their part, federal courts have not (yet) been very active in the determination of same-sex marriage cases. And, unlike the same-sex marriage cases initiated in the early 1970s, the cases brought by lesbian and gay activists since 1991 have explicitly targeted state statutes and state constitutional provisions as their legal basis, rather than the federal statutes or US Constitutional provisions that might invoke the intervention of the federal courts. Thus, federal courts have mostly been absent from the current debate.
There are only four major cases to date where federal courts have explicitly ruled in relation to same-sex marriage: two cases in the years prior to the passage of Federal Defense of Marriage Act and the remaining two cases after it.
In 1980, the US District Court for the Central District of California ruled against a same-sex couple attempting to have their marriage license recognized for the purposes of staying an immigration order on one of the partners to the marriage. The original marriage certificate had been issued in 1975 by a Boulder, Colorado clerk.Footnote 76 The District Court held that “if the Colorado law was the other way and recognized the validity of this purported marriage, I would nevertheless affirm the INS and grant judgment for the government on the ground that such Colorado law would violate federal public policy.”Footnote 77 Thus, federal judges acted in this case to determine federal public policy on same-sex marriage at the time. And, they did so in the absence of any direct expression of Congressional preferences—it would be sixteen more years before Congress enacted the Federal Defense of Marriage Act.
In 1995, the US Court of Appeals, District of Columbia, ruled that the US Constitution did not require the introduction of same-sex marriage by the District of Columbia.Footnote 78 The decision reaffirmed the holding of the lower court in which the judge had stated that the same-sex relationship at the heart of that case, “by definition, simply was not a “marriage.” Any change in that definition must come from the legislature—not this Court.”Footnote 79
In 2004, the US District Court for the District of MassachusettsFootnote 80 and the US Court of Appeals, First CircuitFootnote 81 each reaffirmed the right of the Massachusetts Supreme Judicial Court to interpret Massachusetts' statutes and the Commonwealth's constitution in relation to marriage. The outcome in this case is consistent with the Federal Defense of Marriage Act's implicit recognition of exclusive state control over the parameters of marriage.
Finally, in 2005, the US District Court for the District of Nebraska in Citizens for Equal Protection v. Bruning Footnote 82 invalidated Nebraska's constitutional amendment, which prohibited the state from legally recognizing same-sex marriages, civil unions, or any other aspects that acknowledged same-sex relationships. The amendment was added through a statewide popular initiative in 2000. The district court held that the very broad scope of Nebraska's amendment violated both the US Constitution's first amendment and the equal protection clause of the fourteenth amendment. Nebraska's constitutional amendment was so broad that “among the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property.”Footnote 83
This district court opinion remains, to date, the only case in which any state constitutional amendment on marriage has been overturned by a court. And, within a year of the decision, the district court's ruling was reversed by the US Court of Appeals, Eighth Circuit.Footnote 84 Nebraska's constitutional amendment prohibiting the recognition of same-sex relationships was reinstated.
The holding of the US District Court for the District of Nebraska in 2005 is interesting in terms of the current discussion of “activist” judges. It is worth noting that the district court specifically did not rule on the constitutionality of a state constitutional amendment that merely restricted a state's recognition of marriage to opposite-sex couples. Further, it implied that such an amendment would likely have been valid.Footnote 85 While the district court decision can be identified as temporarily thwarting the popular vote in 2000 of the citizens of Nebraska, the holding itself is entirely consistent with the stated preferences of Congress as expressed in the Federal Defense of Marriage Act. Unlike Nebraska's constitutional amendment, the Federal Defense of Marriage Act defines marriage simply in terms of opposite-sex couples and it does so without any additional restriction upon the recognition of other forms of legal relationships occurring between same-sex couples.
Independent of the obvious statutory and constitutional reasons, it should not be surprising to political scientists that federal court decisions are consistent with the expressed preferences of recent Congressional majorities for the reasons to be discussed below. More interesting in the current context is the role that courts adopt in the absence of any expressed policy position by the lawmaking majorities. From 1980 until Congress passed the Federal Defense of Marriage Act in September 1996, the holding of two federal courts determined the full extent of federal policy on the same-sex marriage issue. And, notwithstanding that there had not been any expression of Congressional preferences on the issue in the preceding fifteen years since the initial federal court action, the second of these federal courts to encounter the same-sex marriage issue explicitly deferred to Congress when pressed on it in 1995.
Summing Up the Evidence
In thirty-six states, courts did not hear a same-sex marriage case between January 1990 and December 2005. Notwithstanding the legislative actions or popular initiatives on same-sex marriage or civil unions that may have occurred in those thirty-six states, the courts in those states did not act at all on the issue.
In the other fourteen states, when litigants filed same-sex marriage claims, courts heard their cases. In seven of those fourteen states, state courts initially faced these same-sex marriage cases in the absence of any expression of legislative preferences; the state legislature had yet to act in any way on this issue.
In four of the fourteen states, courts finally rendered judicial decisions—either in support or in rejection of same-sex marriage claims—in the stead of any legislative action on same-sex marriage; the state legislatures in these four states initially proved disinclined to express their policy preferences on this issue. Yet, the state legislatures in those four states have subsequently acted in a manner that not only facilitated the prior state court decision, but they have occasionally extended its original reach.
In six of the fourteen states, the state's highest court followed the lead of the respective state legislature—whatever the direction of that lead—once the state legislature expressed its preferences on same-sex marriage. The states' highest courts even appeared reticent to act in direct contradiction to statutes promulgated several decades earlier by the respective state legislature, unless there was evidence—in the form of more recent legislative action recognizing same-sex relationships—of a new legislative direction. If lower courts contradicted the lead set by the state legislature, even occasionally to act in support of successfully-passed popular initiatives, they were quickly and effectively overturned by higher courts in that state.
In three of the fourteen states, state courts identified the passage of state constitutional amendments as legally determining the issue and ruled consistent with them. Only in one of the fourteen states to date has a state's highest court acted in direct contradiction to the most recent expression of legislative preference—the Iowa Supreme Court in April 2009.
For their part, federal courts have acted similarly to their state counterparts. They have ruled in the absence of Congressional direction and, between 1980 and 1996, they determined the federal policy on same-sex marriage. Once Congressional action occurred in September 1996, federal courts appeared to follow exactly the lead of the legislature on this issue. In the single example to date where a court overturned a state constitutional amendment on same-sex marriage, the federal judge acted consistent with the previously expressed Congressional preferences on the issue. Even so, a higher federal court soon reversed this US District Court opinion to re-instate the outcome of the statewide vote.
Courts, Legislatures and the Disincentives to Judicial Activism
The traditional answer to the question of judicial activism has been to correctly note that the constitutionally-assigned role of courts in the political system occasionally requires judges to counter popular preferences. This response is consistent with Alexander Hamilton's response to a similar question in Federalist No. 78. The problem is that this discussion usually begins from the assumption that courts really were acting in direct contradiction to the political will of the moment.Footnote 86
Yet, political science research has also noted that judges tend, for the most part, to vote in a manner consistent with current or recent lawmaking majorities. For example, over a half-century ago Robert Dahl demonstrated that the US Supreme Court only very rarely declared federal statutes unconstitutional. Further, these events usually coincided with those historical periods when there were extended delays in the normal cycle of judicial appointments. In other words, inconsistencies between the two branches only predominated when the institutional mechanisms for ensuring that judges reflect the range of value apparent in a legislature, or a portion of it, were not functioning.Footnote 87 At all other periods, the rulings of the US Supreme Court were amazingly consistent with the policy preferences expressed by elected branches and the rulings seemed primarily designed to legitimate these policy preferences through reference to constitutional principles. This led Dahl to state that “the fact is, then, that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”Footnote 88
Even in those cases where the courts appeared to act in direct contradiction of the expressed preferences of the elected branches, recent political science research suggests that perhaps even in these instances judicial action may be realizing the real preferences of current legislative majorities. Mark Graber proposes that apparently recalcitrant legislatures have actually encouraged the judiciary to take a primary role in the resolution of those policy areas that have the potential to threaten the existing political coalitions.Footnote 89 Similarly, George Lovell proposes that “there are instances where the opportunity for judges to influence policy arises because legislators deliberately avoid making choices about policies and instead allow judges to make those choices.”Footnote 90
The fact that the actions pursued by judges are often in accord with the preferences of legislators should not be surprising given the institutional connections between the two branches. At the federal level, legislators exercise extensive control over the appointment of judges and justices through the power of Senate confirmation.Footnote 91 Legislative acts determine all of the geographical distribution and much of the legal jurisdiction of lower federal courts as well as the sheer number of such courts and their requisite staff. And except in the case of simply de-criminalizing an activity, courts are often at the mercy of the legislature and the executive, and the bureaucratic agencies they respectively fund and staff, for the implementation of their decisions.Footnote 92 Even the relatively mundane rule changes necessitated by the introduction of same-sex marriage or civil unions requires the cooperation of bureaucratic agencies, even if such same-sex marriage or civil unions are initially legalized only by judicial order.
Although state courts have widely varying institutional characteristics and appointment processes,Footnote 93 courts in most states are similarly connected through a variety of institutional mechanisms with their respective state legislature. As a result of these connections, there appears to be a similar incentive for state court judges to remain consistent with the policy preferences of the elected branches.Footnote 94
Conclusion
In this article, I have demonstrated that courts, when invoked by litigants seeking to validate same-sex marriages, often acted in the stead of legislatures. They did so in those locations where legislatures had not expressed or would not express their preferences. In those locations where there were recently-expressed legislative preferences in the form of statutes or even successfully passed legislative bills, courts rarely acted in direct contradiction to those preferences. If lower courts did so, they were quickly and effectively reversed by a higher court. For their part, the highest state courts, in every state but Iowa, consistently ruled in the same direction as the most-recently expressed legislative preferences, if any such preferences existed. They did so even if the most recent legislative expression of preferences was in apparent contradiction with the outcome of an older, statewide popular initiative. Otherwise, the highest state courts respected the outcome of such initiatives as they also respected statewide constitutional amendments on the issue. To date, federal courts have rarely engaged with the same-sex marriage discussion, but they appear to have followed a similar pattern of behavior.
Despite the popular appeal of the accusation of “activist judges,” the proof of judicial activism on the issue of same-sex marriage is neither simple nor clear. What is clear is that, since 1971, courts have acted on the issue of same-sex marriage. But judicial action and judicial activism are not synonymous. In the nearly forty years that courts have engaged this issue, there obviously exists the possibility of courts acting contrary to the expressed popular will. Given the constitutionally-assigned role of courts in the political system, we would in fact expect courts to regularly act in this manner.
However, what is most surprising in the judicial and legislative history of the same-sex marriage issue is actually how rarely courts appear to have thwarted the popular will as expressed through the legislature. Court decisions instead appear mostly to simply legitimate prior legislative action, no matter which direction the legislature pursued regarding this issue. Even when courts reluctantly acted in the absence of any legislative action, such apparent judicial enterprise was often endorsed subsequently by the legislature in question through actions that extend the reach of the prior court decision. In sum, the history of state and federal courts on the same-sex marriage issue is rarely consistent with the ideas about judicial activism expressed by President Bush in 2006, and by critics of judicial review more generally. Indeed, this history supports a much more nuanced view of the political processes that link courts, legislatures, and electorates in representative democracies.
