Chris Douglas

On Conservative Judicial Activism and Election 2006

Filed By Chris Douglas | November 05, 2006 8:32 AM | comments

Filed in: Fundie Watch, Living, Marriage Equality, Politics, The Movement
Tags: Chris H Douglas, civil marriage equality, Election 2006, First Republicans

Under an earlier post by Bil Browning, there is a debate going on which speaks directly to a type of Judicial partisanship that should dishearten every Hoosier, let alone those who are its victims. A fundamental guarantee of Indiana's Constitutional demand to equal protection is threatened.


Indiana's Constitution reads:

Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

Pretty simple, isn't it? Pretty black and white? Well, Indiana's gay community thinks so, too, and as a matter of justice and fairness, asks that their households enjoy the protections of the same privileges and immunities that the General Assembly has granted all other citizens. Because the General Assembly has refused to abide by its Constitutional obligation, some gay couples were so bold as to ask a court to enforce the black and white text of the Constitution.

The couples' request was unfortunate for two reasons. The second reason was that it was precipitous, for prevailing in Indiana today is a prejudice against gays that is so deep and broad that its popular wave would upend the Constitution's guarantees before it would ever apply them to gays. But the first reason was that their request relied on a confidence that this prejudice would not also infect the bench to which these couples directed their petition. That judge shirked the obligation and the call of our forebears to subject Indiana law to the rights enumerated in the Indiana's Constitution.

Demonstrating the worst qualities of conservatism, that conservatism which has resisted every extension of liberty and equality, whether to blacks or to women, that judge argued only that it had never been done, that the state had no interest in it, and that to do so would create an uncomfortable precedent. As if equality under the law guaranteed to every class of citizen under the Constitution is applied only where it is already in place, only when the state agrees that it has an interest, and only when it creates no broader precedent.

Under such conditions, what need have we for a Constitution? If this is not judicial activism, what is? The Judge is not merely "legislating from the bench"; the Judge is personally re-writing the Constitution's guarantees.


Now Bil Browning on has posted a picture which, for citizens who already feel abused and unprotected, is disturbing. The Judge who refused to enforce the Constitution's requirement that every class of citizen be granted the same privileges and immunities, is backing a candidate who supports amending the Constitution so that its guarantees don't apply at all. Indeed, in answer to the Constitution's explicit demand that all citizens enjoy equal privileges and immunities, that candidate is supporting an amendment that says that only people who marry may have the privileges and immunities of civil marriage, and prohibits gays from entering into civil marriage.

So we have a judge refusing to enforce the Constitution's guarantees and "refusing to legislate" promoting the career of a candidate who opposes equal protection and would legislate accordingly. If the gay community cannot depend on the Judiciary or the Legislative to preserve, protect and defend the guarantees of the Constitution, and if each branch supports the other blatantly in this dereliction of Constitutional duty, then what legitimacy remains to our Constitutional form of government? What defense remains against the tyranny of the majority our founding fathers feared?

(From Principles of the First Republicans: FIRST REPUBLICANS BELIEVE the United States Constitution and its Bill of Rights is the bedrock of American freedom. The individual rights and freedoms established in federal and state constitutions must be protected from amendment and defended from encroachment.
FIRST REPUBLICANS BELIEVE in the absolute importance of separation of powers. The Legislative, Executive, and Judicial branches of government must all be respected. The balance between these branches is our primary defense against tyranny.)

(Cross-posted from the First Republicans Forum.)

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Don Sherfick | November 5, 2006 9:34 AM

Good points, Chris. Among other things, the proposed amendment's supporters claim that it would simply keep "activist judges" from interpreting the constitution to permit same sex marriages/civil unions. In fact it would also tie the hands of the legislature. And since the amendment is to the section of the Indiana Constitution termed the "Bill of Rights" the very same section that contains the "Privileges and Immunities" ("equal protection") clause you cite, the amendment would essentially modify that clause to exclude gay and lesbian couples (as well a "unmarried couples or groups" generally. We must continue to hammer that home.

Sounds like the First Republicans are Democrats...but that's just based on current Republican tendencies.

Rick Sutton | November 5, 2006 4:20 PM

Wonderful post, Chris.

Now you can see why Pat Bauer's flip-flop distressed so many people.

We're led to believe that the House Democrats will vote on a "different" Amendment.

Mark my word, that's dangerous politics. Playing fast and loose with some commas and verbs will enrage the far right even more. And they'll use it like a bullt pulpit in 2008.

Any vote is a slippery slope. I just wish Bauer understood that. Not allowing a vote would cost him grief for a day or two when Second Reading deadline passes...or when the Senate bill comes over. He could dodge that--he's dodged worse. And it appears we're going to let him off the hook because his caucus is supposedly forcing him to vote on this issue. Odd...that caucus hasn't even formed yet. Its membership will be determined Tuesday, and in no district in Indiana has this Amendment been a top campaign issue.

It's all fuzzy logic. And the fight begins.

You do not stop judges from disobeying the law by passing another law. What they are afraid of, is not "unelected judges" but the United States and Indiana constitutions.

Bosma has admitted that when he uses his applause line "put the matter in the hands of the legislature", he really means the legislature and the people by the amendment process and he ignores that until such another amendment could be enacted, judges would have a broad license to interpret the laws anyway they like. Some might think such dissembling, on Bosma's part, amounted to prevarication.

It's late, and I'm tired, but what the heck did he just say?

Did you sleep with a thesarus?