HJR-3 and the Threat of “Activist” or Unelected Judges

One of the arguments offered by proponents of the proposed “marriage discrimination amendment” (HJR-3) is the fear of unelected and/or “activist” judges intervening to redefine marriage in Indiana. Proponents claim that we need to “protect” so-called “traditional marriage”* by amending the Constitution in order to prevent one of those judges from acting against the will of Hoosiers. But is that really accurate?

I don’t really want to get into an argument about what is and isn’t an “activist judge” other than to note that conservatives have no issue with asking judges to overturn laws that they don’t like (remind me, how many lawsuits have been filed to stop Obamacare?) or to challenge what they believe are infringements of their rights (lawsuits about gun control laws, for example). Yet when the Supreme Court overturned a hundred years of jurisprudence in Citizens United or threw out elements of the Voting Rights Act (that had been reauthorized by Congress with votes of 390-33 in the House and 98-0 in the Senate), we didn’t hear screaming complaints about the role of “activist judges”. No. A judge is only an “activist” if he or she does something with which you disagree (and by “you”, I mostly mean conservatives). So a judge that recognizes that our country is based on principles of equality and thus rules that laws banning same-sex marriage are unconstitutional is an “activist”. Create new law that says that corporations are people? Not an activist. Say that loving couples should have the right to marry? Activist!

Anyway, what’s wrong with an “activist” judge looking at laws to decide if they’re unconstitutional? Isn’t that how our system is designed? If “activist” judges hadn’t intervened, African American children might still be attending “separate but equal” schools and interracial marriages would still be illegal in many states.

And this whole “unelected judges” thing? Right. Um. Not so much. You see, in Indiana, trial court judges are elected (and whether that is a good idea or not is the subject for another day). Judges can’t run issue-based campaigns, but based on party affiliation, it’s often a fairly safe guess for voters to know what sort of general worldview they may bring to the bench on certain issues. Even the judges on Indiana’s Court of Appeals and Supreme Court have to face a retention vote every 10 years. Only federal judges are “unelected”^.

But where the argument in favor of HJR-3 really breaks down is the suggestion that adding discrimination to Indiana’s Constitution will somehow “protect” Hoosiers from the decision of these mythical activist judges. Why do I say that? Well, consider this: At present, Indiana law already prohibits same-sex marriage. Yes, Hoosiers could file a lawsuit seeking to overturn that law as unconstitutional (as was tried in a lawsuit filed in 2002; the Indiana Court of Appeals rejected the argument and same-sex marriage remains illegal). If a new lawsuit is brought without HJR-3, it is likely that the lawsuit would take aim at the existing statute (again). And in that situation, the case would be heard by one of Indiana’s elected judges.

However, if HJR-3 is adopted and approved by Hoosiers to become a part of the Constitution, then litigation is probably more likely, especially given the current state of federal law on the question of marriage equality. And if a new case were filed taking aim at the newly amended Indiana Constitution, the case would most likely be heard by one of those unelected federal judges. You know, federal judges like the ones that recently held that Utah’s and Oklahoma’s prohibitions on same-sex marriage violated the United States Constitution.

It seems certain that we will see more litigation on the issue of marriage equality in Indiana. The question is whether that litigation will be examining Indiana’s existing statutory prohibition on same-sex marriages and be decided by Indiana courts or if that litigation will be examining Indiana’s Constitution and be decided by federal courts. In either event, and seemingly no matter what the General Assembly does, the issue of whether bans on marriage equality are constitutional will be determined by the courts.

So don’t be misled by the suggestion that amending our Constitution will somehow protect “traditional” marriage from judges.

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*Remind me again how we define “traditional marriage” and what makes it so traditional? Once again, I feel compelled to post this:

^Recall, however, that it is the right of the President or Governor, as the case may be, to appoint appellate (and Supreme Court) judges. And unlike a Presidential judicial appointment, an appointment to the Indiana Court of Appeals or Supreme Court by the Governor is not subject to the consent of Indiana’s General Assembly. Thus, while the appellate judges themselves aren’t elected, the issue of the type of judges that the President or Governor might appoint are certainly important (though often overlooked) campaign issues.