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Judicial Activism and the Constitutional Amendment on Marriage

By Susan Shelley

Do we need a constitutional amendment to ban same-sex marriages in America?

If you support a ban on gay marriage, the answer is yes. The U.S. Constitution requires all states to recognize the legality of marriages performed in all other states, and in Massachusetts, the Supreme Judicial Court has ruled that barring an individual from marrying a person of the same sex violates the state constitution's Equal Rights Amendment.

Three of the seven justices on the Massachusetts high court disagreed with the majority's opinion. One pointed out that the state Equal Rights Amendment was presented to the voters in 1976 with the explicit guarantee that "an equal rights amendment will have no effect upon the allowance or denial of homosexual marriages."

But the majority held that "civil marriage is an evolving paradigm" and that "the history of constitutional law 'is the story of the extension of constitutional rights and protections to people once ignored or excluded.'"

This is known in some circles as judicial activism.

Do we need judicial activism? Judge for yourself:

The Massachusetts high court acknowledged that its decision marked "a change in the history of our marriage law" but said "history must yield to a more fully developed understanding" of the effects of discrimination. The justices cited as authority, among other cases, Bolling v. Sharpe.

Bolling v. Sharpe is the 1954 Supreme Court ruling that desegregated the public schools of Washington, D.C. It held that school segregation was prohibited by the due process clause of the Fifth Amendment.

The Bolling v. Sharpe decision cited as precedent the landmark Brown v. Board of Education decision, handed down the same day, which held that school segregation was prohibited by the equal protection clause of the Fourteenth Amendment.

The equal protection clause couldn't be used to desegregate the schools of Washington, D.C., however, because the Fourteenth Amendment only applies to the states, and the District of Columbia is not a state, but is under the direct control of Congress. The Fifth Amendment applies to Congress, but it doesn't have an equal protection clause. So the Supreme Court became creative.

"In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools," Chief Justice Earl Warren wrote, "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution."

The Court ignored some inconvenient history. First, the Fourteenth Amendment had specifically left segregation in place, and second, Congress had maintained segregated schools in the District of Columbia for ninety years without anyone ever finding it to be a violation of the Fifth Amendment's due process clause. But segregation had to go, in the Court's unanimous view, and it went.

Since 1954, the Supreme Court has used the due process clauses of the Fifth and Fourteenth Amendments to invent many of the rights we take for granted today. There never was a constitutional amendment to ban racial or gender discrimination, or to establish a constitutional right of privacy, or to prohibit the states from infringing freedom of speech. In fact, the entire Bill of Rights was intended to apply only to the federal government. If you're ever arrested by state and local authorities, you can thank the U.S. Supreme Court for the right to remain silent, the right to be free from unreasonable searches and seizures, and the right to trial by jury.

All of this was judicial activism.

If we want to be rid of judicial activism, we will have to amend the Constitution not just to reverse unpopular decisions, but to confirm popular ones. As long as we allow judicial interpretations to substitute for constitutional amendments, we will have judges who rewrite laws to suit their own ideas of fairness.

Is it necessarily a bad idea to let unelected judges rewrite laws?

The Constitutional Convention gave it some thought in 1787. The delegates considered a proposal for a Council of Revision that would have allowed federal judges to weigh in on bills before they were signed into law. James Wilson of Pennsylvania pointed out that "laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect."

The Council of Revision proposal was voted down twice and never seen again.

Judges "are not to be presumed to possess any peculiar knowledge of the mere policy of public measures," said Nathaniel Gorham of Massachusetts. "The Judges must interpret the laws," said John Dickinson of Delaware, "they must not be legislators."

The Constitution set up a system of government in which laws are made by representatives who are accountable to the voters, not by judges who are protected from the voters by lifetime appointments. The courts may think the legislatures move too slowly, but the Constitution does not authorize them to usurp the lawmakers' power in order to speed things up.

George Washington warned us about this in his Farewell Address to the nation. "If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong," President Washington said, "let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

February 13, 2004
Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on "How the First Amendment Came to Protect Topless Dancing." Both are now available in eBook editions from

© Copyright 2004 by Susan Shelley

Source Notes:

U.S. Constitution, Article IV, Section 1: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The Constitution can be read online at:

The Massachusetts case is Goodridge v. Department of Public Health, November 2003, Docket No. SJC-08860. The quotation from the dissenting opinion is taken from the dissent of Justice Cordy. The full decision can be read online at:

Bolling v. Sharpe, 347 U.S. 497 (1954)

Brown v. Board of Education, 347 U.S. 483 (1954)

For complete notes on the history of the Fourteenth Amendment and segregation, Supreme Court rulings applying the Bill of Rights to the states, and the Council of Revision debate, please see the appendix to
The 37th Amendment
, online at:

Or read the expanded and updated eBook edition, How the First Amendment Came to Protect Topless Dancing, available at:

George Washington's Farewell Address, delivered on September 19, 1796, can be read online at the University of Virginia Web site:

Click the title to read the column

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A Retirement Plan for Sandra Day O'Connor

How the First Amendment Came to Protect Topless Dancing

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Susan Shelley is running for Congress in California's 30th District, the west San Fernando Valley.

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