TY - JOUR
T1 - In search of judicial activism in the same-sex marriage cases
T2 - Sorting the evidence from courts, legislatures, initiatives and amendments
AU - Barclay, Scott
PY - 2010/3
Y1 - 2010/3
N2 - In 2006, President Bush publicly stated that, in relation to the same-sex marriage issue, activist judges were thwarting the preferred policy of the elected representatives and the expression of popular will embodied in popular initiatives and constitutional amendments. Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political system and the idea of judicial independence, President Bush's statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments? Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President Bush's 2006 statement, I argue that, with some rare exceptions, judges can not easily be identified as activist on the issue of same-sex marriage even if we assess their actions according to President Bush's criteria.
AB - In 2006, President Bush publicly stated that, in relation to the same-sex marriage issue, activist judges were thwarting the preferred policy of the elected representatives and the expression of popular will embodied in popular initiatives and constitutional amendments. Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political system and the idea of judicial independence, President Bush's statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments? Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President Bush's 2006 statement, I argue that, with some rare exceptions, judges can not easily be identified as activist on the issue of same-sex marriage even if we assess their actions according to President Bush's criteria.
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U2 - 10.1017/S1537592709992696
DO - 10.1017/S1537592709992696
M3 - Article
AN - SCOPUS:77951438717
SN - 1537-5927
VL - 8
SP - 111
EP - 126
JO - Perspectives on Politics
JF - Perspectives on Politics
IS - 1
ER -