Esenbergian Philosophy

A while ago, I decided to count the phrase "activist judge" among the ranks of "terrorist" and "fascist." Words (in this case a phrase) which used to have a defined, common meaning but have been reduced to epithets. You can't really tell anything about someone to whom these words are applied (in contemporary parlance) other than the obvious fact that the person who did the applying disagrees with him or her . . . vehemently, and would rather not have a civil argument.

Enter Rick Esenberg who applied the "activist" label to a decision of the California State Supreme Court last week (he did scrupulously avoid an ad hominem attak). He alleges the four majority justices disregarded the meaning of the plain language of the California State Constitution (which I'd wager he's not familiar with) when they rendered their decision (which he admits he hasn't read). I can't argue with that. We'd both need to know what we were talking about. Fortunately, his actual argument is philosophical . . . and wrong.

His first stab recycles a popular conservative yarn about the procreative nature of marriage. He's not a bigot, you see, marriage is just about creating a framework for raising children.

This is nonsense. Disregarding, for the moment, the fact that marriage has, historically, mostly been about property rights, (I remember attending a traditional Jewish wedding ceremony where the contract illustrated this pretty clearly) there's the inconvenient fact that couples without the ability or intent to have children get married all the time. There's also the intention of many same-sex couples to adopt children. Conservatives would be quick to point out the potential "damage" to the child but, with mounting evidence, nobody's ever been able to demonstrate any systemic disadvantage to the children of gay and lesbian parents. What would be needed to make a compelling argument against same-sex marriage is a clear disqualification unique to same-sex couples. This argument fails to disqualify and the absence of a functional, matched pair of reproductive organs (with intent to procreate) is not unique.

Next, there's the strain on poor marriage. Already she's endured the sexual revolution and no-fault divorce, another rapid change could do the old gal in.

Personally, I don't think the cultural defense argument really holds any water. It seems singularly unamerican to place the perceived welfare of some cultural orthodoxy ahead of individual liberty. At any rate, two years after its own decision, Massachusetts' divorce rate doesn't appear to have shot through the roof.

Then, finally, we get to the meat of the "activist" accusation. Regardless of what the California constitution says, when its framers said "equal treament," or words to that effect, they couldn't possibly have meant to include gay people. Everybody hated gay people until "a few years ago."

When one attempts to characterize constructionism by claiming its adherents are simply attempting to divine the thoughts and subliminal intentions of a law's authors, (unless it's an environmental-protection or anti-discrimination law) one is usually in for a verbal thrashing. In this case, I fail to see what else Esenberg could be doing. When the founding fathers said "All men are created equal," it is likely that they did, in fact, mean just men, and only white ones. Since then, it has often been the "activist" courts who have had to be at the fore in saying that, in plain language, equal means equal, and there's no substantive distinction between white men and black men, men and women, or straight women and lesbians. Yes, it's taken a while to figure this out but do we really expect the courts to pretend the last two-hundred years never happened? We know more than our forefathers did and we'd be fools to ignore that knowledge.

But wasn't the court overturning the "will of the people?" Yes, and so what? If this were actually a direct democracy, we wouldn't need a constitution in the first place. If it was allowed a vote, the body politic may indeed come to a different opinion about what should be done with my hair or my lawn but they don't get a vote. It's my hair, its my lawn and its my marriage. The idea that civil liberties should be put to a vote is ridiculous. Regulation of public behavior is something we do, for better or worse, quite regularly. Regulation of private conduct and access to public institutions is rarer and requires greater care than a year-long slug-fest/slogan-contest over a poorly worded ballot question. It requires actual evidence that curtailing freedom yields a public good overriding the violation of private liberty. A history, however long, of violating that liberty for no good reason does not constitute a justification.

So was the California court being "activist" when it decided to look at the world in front of its nose rather than gazing into Antonin Scalia's crystal ball? Who cares? Regardless of what label gets attached to the decision, it's left the state of California freer and more fair.