The Judicial Imposition of Same-Sex Marriage: The Boundaries of Judicial Legitimacy and Legitimate Redefinition of Marriage

The recent ruling in Perry v. Schwarzenegger raises serious constitutional issues about the legitimacy of exercising judicial authority to mandate same-sex marriage, as well as raising serious questions about the legitimacy of the domestic relationships the ruling creates. Present judicial practices are compared with the discussion on judicial legitimacy during the Constitutional Convention in 1787, which shows that there existed widespread concern about the judiciary usurping political power, in particular, of becoming the “judiciary of Aragon,” who gradually became the lawgiver of the kingdom by striking down laws and imposing its own policy preferences. The role of the judiciary to create public policy is examined through the “political question” constitutional law doctrine, as well as the need to go to the constitutive sovereign of the people, in order to reconstruct such a foundational social institution as marriage. The authority of governmental agents to alter social institutions without sovereign ratification is also questioned. The article also examines instances where same-sex marriage has been created through judicial degree, examining whether such unions have legitimacy when created by illegitimate exercise of judicial power. In conclusion, the article scrutinizes some of the serious mistakes made by Judge Walker in Perry and how these mistakes reflect judicial overreach, raising the core question whether the government and laws of the United States are founded on popular sovereignty or judicial supremacy