B: Relatively recently, the Supreme Court declared as unconstitutional any law that might potentially exclude people of the same sex to have a government-recognized marriage, on the basis that all U.S. citizens have a fundamental right to marry, including according to sexual preference. This ruling precludes any state, or the federal government, from passing a law (such as the numerous propositions relating to this issue that states have voted upon) that would “define marriage” in such a way that same-sex marriage would be unrecognized.
Let’s consider the case of such a proposition. The people decide – obviously in anticipation of the potential legalization of same-sex marriage – to make a law (or “proposition”) defining marriage as being only recognizable between two people of opposite sexes, explicitly for the state in which they reside. They vote on it, and the vote is in favor of it. Usually, the state’s constitution has already expressed that the people have a right to do that, and to attempt to pass it.
But in order to pass it, by most states’ constitutions (and the U.S. Constitution), it has to go through judicial review. Now the object of the judicial review is to decide if the law or motion is “constitutional;” i.e., consistent with the governing constitution. That’s all. It’s not (intended to be) an opportunity for the judges involved in the review to declare what they think the law should be, which would be an instance of “judicial activism.”
Now, when courts are reviewing a law about marriage – remember, their object is only to decide whether or not it is constitutional – how are they supposed to decide whether it’s constitutional if there’s nothing explicitly mentioned in the constitution about marriage? They can’t simply make up what they think marriage should be – that was the very purpose of the proposed law in the first place. But usually there’s something in the constitution about preserving “fundamental human rights,” and it could easily be interpreted that marriage is a fundamental human right. Marriage has been practiced for centuries in all societies, by all sorts of people.
Now if the law in question (that is, the one being reviewed), then, does not preserve those fundamental human rights for the people or a group of people, then it would be rightfully declared unconstitutional. Usually these definition of marriage acts say something like (in summary): “marriage is to be recognized between one man and one woman at a time, both consenting and unrelated by blood.” Notice that this does not actually discriminate against anybody: that is, every person, regardless of race, religion, sex, nationality, sexual preference, etc., can marry exactly one other person of the opposite sex, as long as they aren’t already married to somebody else and the other person consents and is unrelated by blood. For example, both heterosexual-leaning and homosexual-leaning people have an equal opportunity to be married to a person of the opposite sex.
But the issue, of course, comes into play when a judge involved in the review decides whether marriage according to sexual preference should be a fundamental human right. How in the world is he supposed to tell? No such right has ever been enumerated anywhere specifically by any constitution or bill of rights – certainly not any constitution to which the people in question are subject. So he starts questioning about whether it should be a right. And here is where I maintain that the judge has gone too far: he has begun to think that he has the power to decide whether that thing should be a right. If he thinks it should be, and uses that rationale as the basis for which he declares the motion unconstitutional, his one vote has overridden the vote of the people. He may have great reasons for why he thinks that should be a right, but it doesn’t matter: he has outstepped his bounds by declaring his opinion about whether a certain thing should be a right. Let’s remember, that wasn’t his job. His job was simply to determine whether the law, as stated, was unconstitutional. If there was nothing in the constitution that declared marriage according to sexual preference to be a right, what right has he to so declare? The job of the judge is to determine consistency of the law with the already-existing constitution, not to edit the constitution according to his own preferences and beliefs.