In Search of Judicial Activism in the Same-Sex Marriage Cases: Sorting the Evidence from Courts, Legislatures, Initiatives and Amendments

Abstract

In 2006, President Bush publicly stated that, in relation to the same-sex marriage issue, “activist judges” were thwarting the preferred policy of the elected representatives and 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 system and the idea of judicial independence, 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 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 criteria.