The success that the American same-sex marriage movement has achieved to date has to a considerable extent depended on judicial activism. Many of its victories therefore lack democratic and constitutional legitimacy. They lack democratic legitimacy because they result not from the ordinary political process of representative self-government but from the decisions of institutions, courts, that are not responsive to the popular will. They lack constitutional legitimacy because these court decisions have relied on novel interpretations of constitutional provisions, interpretations that cannot credibly be represented as related to—much less required by—the intentions of the authors of those provisions. Moreover, it is likely that many of the same-sex marriage movement’s future victories, if they come, will similarly rely on judicial activism and will therefore suffer from these same defects of legitimacy. While it is possible that some additional state legislatures will institutionalize same-sex marriage, it is very doubtful that many will do so. Nor does it seem likely that the Congress of the United States will do so in the foreseeable future. To the extent that this movement has succeeded and may succeed, it seems, it will be possible for many to question whether its victories have been fairly won.
Proponents of same-sex marriage, determined to prevail through judicial activism if necessary, but also aware of this question of legitimacy, sometimes appeal to the precedent of the United States’ quest for racial equality. Their efforts to establish same-sex marriage through litigation, they suggest, can be understood as analogous to the civil-rights movement of the 1950s and 1960s. After all, an activist Supreme Court is commonly thought to be one of the institutional heroes of the civil-rights movement—and therefore of American history. In Brown v. Board of Education, for example, the Supreme Court delivered an important victory for racial justice by striking down segregation in public education, even though that decision could be characterized as lacking democratic legitimacy insofar as it overturned practices that enjoyed majority approval in the states in which they arose, and lacking constitutional legitimacy insofar as it depended on overturning a long-established interpretation of the Constitution. According to this argument, a key victory of the civil-rights movement may have lacked certain kinds of procedural legitimacy, but it was nevertheless right, and is today universally approved, because it enjoyed a higher moral legitimacy arising from its vindication of the fundamental principle of equality. Thus the judicial victories that the same-sex marriage movement seeks would possess the same kind of legitimacy as the Brown decision, which nobody would deny is one of the finest achievements of American jurisprudence. Put simply, the advocates of same-sex marriage can respond to the charge of judicial activism as follows: “So what? Reliance on judicial activism is as American as the civil-rights movement.”
I would contend, however, that this analogy is problematic, that the civil-rights movement in fact provides scant precedent for the same-sex marriage movement’s striving for victory through judicial activism. Here my concern is not with the important moral differences in the cases. (It is not at all clear, after all, that legal “discrimination” that prevents same-sex marriage presents anything like the moral concerns raised by racial segregation; this moral difference has been ably explored by others.) Rather, I will address the ways the two movements differ in relation to the aforementioned principles of democratic and constitutional legitimacy. My argument is that even if one concedes, for the sake of argument, that the civil-rights movement relied in some measure on judicial activism, the same-sex marriage movement is nevertheless relying on it to a far greater extent and in a more extreme form. My hope is that these considerations will convince even proponents of same-sex marriage to question whether it should be sought by such means.
To begin with, we should observe that the civil-rights movement did not rely entirely on the aid of courts for its greatest triumphs. The selective memory that suggests otherwise is useful for the same-sex marriage movement, insofar as it calls to mind, and seems to legitimize, an enlightened judiciary nobly overruling a bigoted majority—an image the proponents of redefining marriage would like to conjure for their present purposes. This, however, is not the whole story. After all, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 would have to be considered two of the greatest legal milestones of the civil-rights movement. Yet both were the work not of the courts but of a Congress that framed and enacted them and a President who urged them and signed them into law. That is, they were the work of institutions responsible to the people. To this extent, at least, the advances of the civil-rights movement raised no questions of democratic legitimacy.
But what about the aforementioned Brown v. Board of Education? Was this not the first and greatest victory of the civil-rights movement, and did it not amount to a form of judicial activism? Here the fundamental issue is one of constitutional legitimacy rather than democratic legitimacy. For if the Brown decision was constitutionally correct, then the Court was justified in overturning an unconstitutional practice even if it enjoyed the support of a local majority. In such a case, the Court could not be accused of activism. Moreover, from the constitutional legitimacy of its decision would flow a kind of democratic legitimacy as well—insofar as the decision upheld the will of a more authoritative majority, that which ratified the Fourteenth Amendment to the Constitution. But did the Court in fact uphold the will of those who ratified the Fourteenth Amendment? Or did it rather depart from the intentions of the authors of that amendment, dispensing with constitutional legitimacy for the sake of a more fundamental moral legitimacy? One could argue that the Brown decision does represent such a case of moralistic activism. The Court, this argument would hold, departed from the Fourteenth Amendment, and more specifically from the Equal Protection Clause, by requiring more of the states than its authors could have intended to require. As an earlier Court pointed out in Plessy v. Ferguson, the source of the “separate but equal” doctrine, a number of the states that voted to ratify the Fourteenth Amendment themselves practiced racial segregation in education. It is therefore difficult to believe that such segregation was considered to be one of the abuses that the Equal Protection Clause was intended to prohibit. Thus, the proponents of same-sex marriage might argue, the Brown decision was a case of constitutionally questionable judicial activism, yet practically no one would wish it were decided otherwise. Therefore, their argument would continue, the American tradition approves such judicial activism if the good to be achieved is great enough, and same-sex marriage activists can seek to invoke it in the pursuit of their aims, which are, at least to them, a continuation of the struggle for equality.
Some very formidable proponents of constitutional originalism (such as Judge Robert Bork) would deny this conclusion by denying that the Brown decision, or at least the Brown result, need be interpreted as an instance of judicial activism. That is, one could hold that, whatever the defects in the reasoning of the Court’s opinion in Brown, there is also an originalist, or non-activist, line of reasoning that could have sustained the Brown outcome disallowing racial segregation in public education. Nevertheless, let us grant—again, merely for the sake of argument—that the Court did engage in judicial activism in Brown, that it required more than the Fourteenth Amendment really requires in the name of an egalitarian justice that seemed compelling to the Court. Even if this were a correct account of Brown, it is still the case that it represents a kind of judicial activism so modest in comparison to that required by the same-sex marriage movement that the former is no precedent for the latter.
Even if those who framed and ratified the Fourteenth Amendment did not intend to forbid “separate but equal” racial segregation in public education, they undoubtedly intended to forbid some forms of state-sponsored racial discrimination. Thus, if the Court went beyond the Constitution in Brown, it at least only went further in the same direction that its authors intended. In contrast, when contemporary courts use state constitutions’ equal-protection provisions—or any other provisions, for that matter—to require same-sex marriage, or even civil unions, they are turning these provisions to purposes, and invoking them in relation to questions, that were, beyond all serious dispute, utterly absent from the minds of their authors. To employ a well-worn but nonetheless apt metaphor: if the Court stretched the Constitution in Brown, the advocates of same-sex marriage are demanding a much bigger stretch in pursuit of their goals—so much bigger that the former cannot reasonably be invoked as precedent for the latter. This is not to say that there is no historical precedent for the kind of judicial activism to which the same-sex marriage movement repeatedly invites American courts, one that invents new constitutional rights completely out of whole cloth. As Professor Robert P. George has recently observed, such a precedent can indeed be found—in Roe v. Wade. Needless to say, Roe, unlike Brown v. Board, is not universally accepted as one of the Supreme Court’s proudest moments, and is therefore useless as a source of public legitimacy for the same-sex marriage movement’s current efforts.
Finally, let us hypothetically concede that the civil-rights movement relied on an extreme judicial activism such as the same-sex marriage movement now invites. For that matter, let us hypothetically concede that the proponents of same-sex marriage are correct in their assertion that its absence does an injustice to homosexuals. It still would not follow that the first episode of activism would justify a second. For such activism always carries grave costs—in public dissension and strains on civic friendship, in lost respect for the Constitution and for democratic self-government—that are not lightly to be borne, even in an undoubtedly good cause. In view of those costs, citizens should hesitate more, not less, each time such activism is invited. Therefore, in order to make their case for court-imposed same-sex marriage really compelling, its advocates would have to contend that the injustice done to homosexuals by the existing definition of marriage is as great as, or even greater than, the injustice done to American blacks by the system of Jim Crow. This I think even the most ardent supporters of same-sex marriage would hesitate to affirm. They should accordingly seek other venues than courts in which to press their argument.