According to opponents of marriage equality for same sex couples, the 40 pro-equality rulings since last year’s landmark Windsor decision are the product of “activist” judges out to cram gay marriage down our collective throats. Brian Brown, President of the National Organization for Marriage*, has written time and again about how the spate of decisions striking down marriage bans in states across the country are “judicial activism run amok,” never considering that a ruling on the constitutionality of a law properly before a court is simply a judge doing his or her job, even when they rule against you.
If Mr. Brown wants to see true judicial activism in action, I would point him to yesterday’s ruling out of Louisiana in the case In re: Brewer and Costanza. On the surface, it seems not much different than the 39 pro-equality rulings that came before it. Angela Marie Costanza sought an intrafamily adoption of her wife Chasity Shanelle Brewer’s child that the two are raising. Judge Edward Rubin ruled that by refusing to recognize Constanza & Brewer’s California marriage and grant the adoption, the state was violating the full faith and credit, due process and equal protection clauses of the U.S. Constitution. Nothing “activist” there.
But then he kept going. Buzzfeed’s Chris Geidner writes:
Despite the lack of any plaintiffs in the case seeking to marry in Louisiana, Rubin went further, enjoining state officials from enforcing those laws insofar as they prevent same-sex couples from marrying — in order words, ordering state officials to allow same-sex couples to marry.
That’s right. Even though the plaintiffs in the case were already married and no one involved was asking the judge to allow them to get married in Louisiana, the judge went ahead and told the state that they had to marry all the gays. Because he said so. And that is how you do some judicial activism, friends. Mr. Brown, take notes.
As much as I agree with the sentiment, I’m not sure if Judge Rubin’s overreach will ultimately be worth it. The Supreme Court is already scheduling cert petitions for consideration in the same sex marriage appeals that have made it to that stage and a decision there could easily render any action here moot. And a sturdy decision on just the issue of out-of-state marriage recognition would have easily set up Louisiana for a full equality case in the event that SCOTUS doesn’t act first.
One thing’s for sure: if opponents of equality are looking for what judicial activism really looks like, they should take a look at this.