"Traditional" Does Not Always Mean "Legal"“The state’s protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional.”
— Judge Richard A. Kramer, California Superior Court for the County of San Francisco, in Woo v. Lockyer, ruling that California statutes defining marriage as solely between a man and a woman violated the California constitution, 2005. “The fact that the governing majority … has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”
— U.S. Supreme Court Justice John Paul Stevens, dissenting in Bowers v. Hardwick (1986). The court later endorsed Stevens’ words in the Lawrence v. Texas (2003) decision. Judges are bound to apply the Constitution and other laws fairly and equally. They are not being “activist” when they enforce these laws to protect gay, lesbian, bisexual and transgender rights, including the right to marry (just as they were not being “activist” when they struck down laws barring interracial marriage). They are reversing a misapplication of (or failure to apply) the law. The fact that one group of Americans has been treated as second-class citizens for years, even centuries, does not mean it is “activist” to put things right. As the court noted in the Woo v. Lockyer decision, this is justice long overdue, not activism. |
