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"Activist Judges" or "Re-activist" Judges?

According to President Bush, we must protect the institution of marriage by preventing"activist judges" from tampering with its time-honored traditions. But marriage has been in constant evolution for thousands of years. If judges and governments had not responded to the demands of ordinary people to democratize and humanize its rules and workings, few modern Americans would be interested in entering it.

Until 200 years ago, marriage was based on the economic and political interests of elites and on the authority of men over women. In the middle and upper classes, parents arranged their children's marriages with an eye toward their own gain, completely ignoring the desires of the two individuals involved. Poor people were often not allowed to marry at all. But under the influence of the Enlightenment and the American and French Revolutions,"activist" judges and legislators began to deny that the older generation had the right to dictate the marital choices of the young. They repealed laws that invalidated marriages made without parental consent.

However, our Founding Fathers were not yet ready to tamper with the time-honored marital tradition of giving the husband total control over the person and goods of his wife. When Abigail Adams suggested that her husband, the future President John Adams, write protections for women in the Constitution, he replied that the very thought made him laugh. Husband and wife"are accounted one person," said prevailing opinion,"and he hath power over her person as well as estate." In 1861, the New Jersey Supreme Court ruled:"The husband is entitled not only to all the personal property which the wife owns at the time of her marriage, but to all that she acquires by her skill or labor" during the marriage.  A father's claim to custody of children, even infants, was"entirely axiomatic."

In the mid-nineteenth century,"activist" judges responded to demands of the emerging women's movement and its male supporters by expanding the legal and economic rights of wives. To the dismay of many defenders of traditional marriage, they even began to rule against the traditional right of men to"physically correct" their wives or imprison them at home. But as late as 1911, the U.S. Supreme Court resisted this trend, invalidating a statute that allowed wives in the District of Columbia to sue for damages on their own behalf. A lower court had interpreted this statute as permitting a battered wife to sue her husband. The Supreme Court majority indignantly dismissed the"revolutionary" idea that wives had such individual legal rights.

While the Supreme Court long refused to recognize that husband and wife might have separate interests, the state courts that had to deal with real marriages increasingly found it necessary to rework tradition. In 1954, the New York Court of Appeals ruled that it"would not be consonant with our present social concepts of husband and wife" to persist in saying that the two did not have separate identities. In 1968, the same court reversed the 150 year tradition that forbade a wife to sue for the loss of emotional, housekeeping, and sexual services in the event of her husband's wrongful death. Formerly, this privilege was reserved for men, on the grounds that only wives were"supposed to render services in and  about the home" and they could not sue for the loss of something they were not entitled to in the first place.

 In 1967, the U.S. Supreme Court joined the rush toward"judicial activism" by declaring unconstitutional the many state laws banning whites from marrying Filipinos, Asians, Native Americans, or African-Americans (a category that was defined by some legislatures as including any individual carrying"one drop of Negro blood").

By the 1970s, the revived women's liberation movement was forcing judges across the country to conclude, as did the New Jersey Supreme Court in 1980, that the legal doctrine of wifely subordination was"anachronistic."  As the court put it, the law must recognize that wives were now"their husbands' partners, not their servants." By the mid-1980s,"activist judges" were also reversing the long-standing legal principle that a man could not be convicted of rape for forcing himself upon his wife.

All these interpretations radically challenged the time-honored traditions of marriage. But the courts that updated and democratized marriage did not suck these new ideas out of their thumbs. They were responding to new social realities as men and women became more equal in public and private life. What are often called activist judges and courts might be better termed reactive.

Our legal system is reacting to a worldwide transformation of marriage that cannot be reversed by constitutional amendment. Today, Americans spend, on average, half their adult lives outside marriage. The last decade has seen a sevenfold increase in the number of individuals who live together out of wedlock. Many of them pool resources, accumulate joint assets, and share caregiving obligations, with or without permission from the state. One-third of the children born today have unmarried parents. Many gay and lesbian couples also are raising children.

These arrangements require types of legal recognition that used to be reserved for marriage. When individuals take on caregiving tasks for each other that would otherwise have to be provided at public expense, they need the legal rights to follow through, such as making hospital decisions or receiving inheritance rights. And if they walk away from a relationship in which they took on such responsibilities, they should not be allowed to abandon the obligations they incurred just because they lack a marriage license. It would be irresponsible for courts and legislators not to respond to these changing realities.

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