Bush says activist judges are the reason we need a Constitutional Amendment banning gay marriage. This has a lot in common with his statements tying Saddam to September 11: It's a outright lie.
There is no epidemic of activist judges allowing gays to marry. So far, one state supreme court – Massachusetts – has allowed gay marriage. One. A few state trial courts have ruled that laws prohibiting same-sex marriage are unconstitutional. These cases are, obviously, on appeal.
And one federal judge in Nebraska – one – has struck down a state law that prohibited same-sex marriage. Judging by the opinion, the law went much farther than prohibiting gay marriage; it made it impossible for gays to even seek legislation for such things as inheritance rights and domestic partner benefits. This case is now before the Eighth Circuit Court of Appeals.
The trouble is, almost no one is challenging Bush's activist judges claim. The New York Times pointed out that it wasn't true in an editorial on June 5. But I haven't seen one news story or heard one radio or TV report that has mentioned the limited number of court opinions on the subject. And no one seems to have asked Bush to be specific.
Bush is using the activist judge lie to promote a federal Constitutional ban on same-sex marriage as a political tool, of course. But the problem presented by this particular lie is broader than either the 2006 elections or the rights of gays to marry: It's part of a concerted right-wing attack on judges.Every time Bush says activist judges, he is implying that there are a large number of judges – federal and state – out to undermine our democracy by throwing out laws passed by Congress and legislatures. He is conveniently forgetting that judges are a crucial part of our system – that a major part of their role is to balance the executive and legislative branches. This has been a settled issue in this country for more than 200 years – ever since Chief Justice John Marshall wrote the decision in Marbury v. Madison that upheld the right of the Supreme Court to decide whether laws were constitutional.
The truth is, we don't have an activist judge problem in this country. Bush's use of the term is an effort to seriously weaken the judicial branch of government, so he can consolidate even more power in the presidency. This is a very dangerous action that actually can undermine our democracy.
We need to challenge the use of loaded words like "activist judges" at every opportunity so that they do not become accepted as fact. A few editorials are not sufficient, as we can see with other lies promoted by Bush.
By the way, there is an epidemic of state laws and constitutional amendments providing that marriage is "between a man and a woman." NPR has a map of these states. While we here on In This Moment disagree with those laws, they do make it clear that the states are addressing the issue. A federal Constitutional amendment expanding the right of gays to marry would make sense; one rejecting it is clearly unnecessary.