A summary of some “activist” judicial decisions in which courts made, rather than interpreted, law.

U.S. Supreme Court

These 10 cases were all decided by the current U.S. Supreme Court, which has had the same nine members since Justice Stephen Breyer’s appointment in 1994. In light of the continued claim by many pundits that this Court is the most “conservative” in decades, note the following:

• The current Court has seven Republican appointees.
  
• Only one of these activist decisions was decided by a 5-4 margin.
  
• Republican appointees wrote the majority opinion in 9 of these 10 decisions.

In Lawrence v. Texas (6/26/03), the Court voted 6-3 to strike down a state law prohibiting persons of the same sex from engaging in “deviate sexual intercourse.” The Court held that the Constitution protects the right to “intimate conduct with another person” and overruled its 1986 decision in Bowers v. Harwick which held there is no “fundamental right [for] homosexuals to engage in sodomy.” In overruling Bowers, the Court embraced “values we share with a wider civilization” reflected in decisions by the European Court of Human Rights and courts in foreign countries. Those values say that attaching “stigma” to certain sexual behavior “demeans the lives” of those who practice such behavior. Justice Anthony Kennedy, a Reagan appointee, wrote the majority opinion.

In Atkins v. Virginia (6/20/02), the Court voted 6-3 to declare that executing the retarded, regardless of their actual guilt, is “cruel and unusual punishment” violating the Eighth Amendment. The Court defined “cruel and unusual punishment” by using what it calls “evolving standards of decency that mark the progress of a maturing society.” While in Lawrence the Court looked to “values we share with a wider civilization,” the Court’s evolving standards of decency here derived from “a much broader social and professional consensus.” This includes medical associations, “representatives of widely diverse religious communities,” and “the world community.” Justice John Paul Stevens, a Ford appointee, wrote the majority opinion.

In Ashcroft v. Free Speech Coalition (4/16/02), the Court voted 7-2 to strike down the Child Pornography Prevention Act. The Court rejected the idea that the harm from child porn “flows from the content of the images, not from the means of their production” and that “child pornography is by definition without value.” The Court said that “teenage sexual activity and the sexual abuse of children” have “inspired countless literary works” and been themes in contemporary movies. Justice Anthony Kennedy, a Reagan appointee, wrote the majority opinion.

In PGA v. Martin (5/29/01), the Court voted 7-2 that the Americans With Disabilities Act regulates professional sports. Title III of the ADA covers “places of public accommodation” and requires them to make “reasonable accommodations” for disabilities. This category has traditionally included businesses and other establishments (“places”) with customers. The Court redefined this category so that golfer Casey Martin becomes a “customer” of the PGA Tour by playing in its tournaments. The Court also decided that it would be a “reasonable accommodation” for the PGA to allow him to ride in a cart, rather than walk, between holes. To say this is “reasonable,” the Court imposed its own definition of the sport of professional golf as hitting the ball but not walking the course. Justice John Paul Stevens, a Ford appointee, wrote the majority opinion.

In Dickerson v. United States (6/26/00), the Court voted 7-2 to strike down a federal statute regarding admissibility of statements by criminal suspects. The Court had in Miranda v. Arizona (1966) imposed specific rules for police to inform criminal suspects of their rights. Failure to follow those rules would alone render a statement involuntary and, therefore, inadmissible. Congress passed a statute making involuntary statements inadmissible, but said that the Miranda rules were only one, rather than the only, test. In Dickerson, the Court said that its decisions have essentially the same status as the Constitution itself. When the Court claims to be speaking in the name of the Constitution, even when the Constitution itself does not require what the Court imposes, Congress cannot legislate otherwise. Chief Justice Rehnquist, a Reagan appointee, wrote the majority opinion.

In Santa Fe Independent School District v. Doe (6/19/00), the Court voted 6-3 that a student-led prayer before a public school football game is an unconstitutional establishment of religion. This is part of the Court’s ongoing regulation of religion in the name of a “wall of separation between church and state.” In Lee v. Weisman (1992), the Court said a graduation invocation by clergy chosen by school officials was an establishment of religion. In Santa Fe, the Court said the same thing about a student elected by his peers giving a prayer those same peers also voted for. The Court said that “immense social pressure” and “genuine desire” by students to attend this extracurricular activity meant their attendance, and thus their hearing the prayer, was coerced. Justice John Paul Stevens, a Ford appointee, wrote the majority opinion.

In Davis v. Monroe County Board of Education (5/24/99), the Court voted 5-4 that a federal law prohibiting sex discrimination in “any program or activity receiving federal financial assistance” allowed a private lawsuit over harassment between students in a public school. The statute itself does not provide for private lawsuits at all, and its language clearly indicates that it prohibits discrimination by the school or its employees, not by private persons (like kids on the playground) the school does not control. Justice Sandra Day O’Connor, a Reagan appointee, wrote the majority opinion.

In City of Boerne v. Flores (6/25/97), the Court voted 6-3 to strike down the Religious Freedom Restoration Act. Congress passed RFRA after the Supreme Court’s decision in Employment Division v. Smith (1990). Smith made it easier for the government to interfere with the free exercise of religion by requiring only a “reasonable” rather than a “compelling” reason for it; RFRA restored the “compelling” standard. In Boerne, the Court said that while Congress may, under the Fourteenth Amendment, pass legislation to “enforce” constitutional provisions such as the First Amendment, only the Court could define those constitutional provisions. Like the decision in Dickerson, this essentially equates the Court’s decisions with the Constitution itself. Justice Anthony Kennedy, a Reagan appointee, wrote the majority opinion.

In United States v. Virginia (6/26/96), the Court voted 7-1 that the system of single-sex education at the Virginia Military Institute is unconstitutional. The Constitution’s guarantee of equal protection requires that “similarly situated” persons be treated similarly. This applies to VMI because it is a state-supported school. VMI uses a unique “adversative” method of education, which requires a single-sex environment. The Court refused to look at the range of educational opportunities supported by Virginia, including a similar women-only program at Mary Baldwin College. Instead, the Court said that women could benefit from the VMI experience just as well as men and, therefore, should be allowed to attend. In this way, the Court imposed its own sociological theory of men and women. Just as the Court in Martin defined the game of golf, the Court her defined the adversative method of education. Justice Ruth Bader Ginsburg, a Clinton appointee, wrote the majority opinion.

In Romer v. Evans (5/20/96), the Court voted 6-3 that a Colorado constitutional limitation on special civil rights protection based on sexual preference violated the U.S. Constitution. Since all laws treated people differently, the courts have said that unless a law involves a “fundamental right” or a specially protected class of people, it need only have a “rational” justification. Traditionally, virtually any articulated reason meets this lenient standard. The Court simply rejected the various reasons offered by Colorado to support Amendment 2; the Court would have had to recognize those reasons as at least “rational.” Instead, the Court insisted that the real reason behind Amendment 2 was “animus” or hatred of homosexuals, which is not a rational justification. The Court Justice Anthony Kennedy, a Reagan appointee, wrote the majority opinion.

Other Courts

In Sharon S. v. Superior Court (8/4/03), the California Supreme Court voted 6-1 to extend “second-parent” adoptions to unmarried persons. State adoption law requires termination of a birth parent’s rights. In 1925, the Court recognized an exception for married step-parents and the legislature later added that to the law. In this case, a birth mother first agreed to allow her lesbian partner to become an adoptive second parent to her son. When the lesbian relationship ended, she sued to revoke the second-parent adoption. The Court said that second-parent adoptions no longer are limited to married persons, but can happen whenever the parties wish. Three justices argued this would allow the creation of domestic arrangements with three or more parents, becoming additional-parent adoptions rather than just second-parent ones. Justice Kathryn Werdegar wrote the majority opinion.

In Mellen v. Bunting (4/30/03), the U.S. Court of Appeals for the Fourth Circuit ruled that the Virginia Military Institute’s tradition of the chaplain reading a suppertime prayer is an unconstitutional “establishment of religion,” even though students could opt out and eat at the second evening mealtime when no prayer was read. Judge Robert King, a Clinton appointee, wrote the decision. On 8/13/03, the full Fourth Circuit declined, on a 6-6 tie, to reconsider the decision. All six judges voting for reconsideration, and two judges opposing it, were Republican appointees.

In Newdow v. U.S. Congress (6/26/02), the U.S. Court of Appeals for the Ninth Circuit ruled that the federal statute inserting “under God” in the Pledge of Allegiance is an unconstitutional establishment of religion. In 1943, the Supreme Court had already ruled that students who religiously objected (Jehovah’s Witnesses in that case) could not be required to recite the Pledge. In Newdow, the court said that merely including the words “under God” in the Pledge at all violated the Constitution, no matter who said it. The decision was written by Senior Judge Alfred Goodwin, a Nixon appointee. The full Ninth Circuit declined to reconsider the decision, and the U.S. Supreme Court has not yet announced whether it will do so.

In V.C. v. M.B. (4/6/00), the New Jersey Supreme Court created the category of “psychological parent” so that a lesbian could sue for visitation and custody of her former partner’s biological children. The court elevated “psychological parents” to the same status as natural and adoptive parents. Justice Long wrote the decision.

In Schwenk v. Hartford (2/29/00) the U.S. Court of Appeals for the Ninth Circuit ruled that the Violence Against Women Act covers transsexuals. The statute allows a civil suit by victims of “crimes of violence…due, at least in part, to an animus based on the victim’s gender.” The court said that the meaning of the term “gender” should not be limited to anatomical characteristics, but also consider society’s expectations about the sexes. Judge Stephen Reinhardt, a Carter appointee, wrote the decision.

In ACLU v. Capitol Square Review & Advisory Board (4/25/00), the U.S. Court of Appeals for the Sixth Circuit ruled that the Ohio state motto – “With God All Things Are Possible” – is an unconstitutional establishment of religion. The court used the “endorsement of religion” test, concluding that the “reasonable observer” would know the words came from Jesus’ words in the book of Matthew and see their use as an endorsement of Christianity. Judge Avern Cohn, a Carter appointee, wrote the 2-1 decision. On March 16, 2001, the full Sixth Circuit voted 9-4 to reverse this decision. Senior Judge David Nelson, a Reagan appointee who dissented in the original decision, wrote the full court’s opinion.

In Freiler v. Tangipahoa Parish Board of Education (8/13/99), the U.S. Court of Appeals for the Fifth Circuit ruled that a disclaimer when teaching the theory of evolution, not the teaching itself, was an unconstitutional establishment of religion. A Louisiana school district required a disclaimer saying that “the Scientific Theory of Evolution” was not being presented to “influence or dissuade the Biblical version of Creation or any other concept.” The disclaimer also affirmed “the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter.” The court said the disclaimer was not neutral and advanced religion. Judge Fortunato Benavides, a Clinton appointee, wrote the 2-1 decision.