Was that judicial restraint exhibited by the New York State Court of Appeals in its decision last week on the definition of marriage?
For decades, too many judges have treated the United States Constitution, state constitutions, and federal, state and local laws like Etch A Sketches. These judges ignore what actually was intended and written, turn things upside down, shake and then write whatever they want.
That's judicial activism - treating the law like an erasable toy. Unfortunately, a childlike judiciary focused on pleasing itself or special interests undermines the will of the people and our constitutional republic.
The most notorious case of judicial activism came in the U.S. Supreme Court's 1973 Roe v. Wade decision in which a 7-2 majority manufactured out of thin air a constitutional right to abortion. In his dissent to Roe, Justice Byron White noted: "I find nothing in the language or history of the Constitution to support the Court's judgment." He went on to accuse the majority of exercising "raw judicial power" and being "improvident and extravagant."
White declared: "This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."
White was absolutely right, and his assessment applies to all instances wherein activist judges overrule the people and their political processes and choose to dictate matters themselves.
That was the case last year when State Supreme Court Justice Doris Ling-Cohan declared that a state law defining marriage between a man and a woman was unconstitutional. She decided to change, for example, the definition of the words husband, wife, groom and bride in the law to mean spouse.
Even though this decision was reversed at the Appellate Division and another case found no basis for so-called gay marriages in New York law or the state constitution, the 4-2 decision announced last week by the Court of Appeals upholding that state law limits marriage to a man and a woman was stunning.
Judge Robert Smith's majority opinion and Judge Victoria Graffeo's concurring opinion exhibited true judicial restraint by taking the law and state constitution seriously.
Graffeo ably explained the court's proper job: "Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent."
Smith pointed out that "New York's statutory law clearly limits marriage to opposite-sex couples" and conforms to the due process and equal protection clauses of the state constitution.
The majority concluded: "We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong."
Earlier, Smith summed up: "Whether such marriages should be recognized is a question to be addressed by the Legislature."
Such respect for the legislative process was missing from Chief Judge Judith Kaye's dissenting opinion. She wanted to legislate from the bench, stretching the state constitution beyond recognition and voicing displeasure with the Legislature's failure to do what she desires.
Contrary to Kaye's wishes, political debate will decide the issue of gay marriage. During this election year, then, where do the two leading candidates for governor, Democrat Eliot Spitzer and Republican John Faso, stand?
Spitzer favors gay marriage. According to Bloomberg News, Faso declared, "Same-sex marriage runs contrary to the religious traditions of millions of New Yorkers of all faiths" and he promised "to ensure that marriage remains a relationship between a man and a woman." Since the Court of Appeals left decision-making with the people, I'm with Faso.
If such judicial restraint can occur in New York, who knows, maybe one day the people will have a say on abortion as well.
Raymond J. Keating can be reached at email@example.com.
Read the entire article on the Newsday website (new window will open). Reprinted with permission of the author.