Lambda Legal Condemns Attack on Supreme Court After Marriage and Healthcare Decisions

During a Senate subcommittee hearing titled "With Prejudice: Supreme Court Activism and Possible Solutions," 2016 presidential hopeful Ted Cruz and others bashed recent Supreme Court decisions granting the freedom to marry for same-sex couples and ensuring that Affordable Care Act subsidies remain available. Cruz, chairman of the Senate subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts labeled these decisions "judicial activism," and invited witnesses to condemn the Court’s decisions.

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One witness, Ed Whelan, in written testimony stated: “The Supreme Court’s 5-4 ruling last month inventing a supposed federal constitutional right to marry a person of the same sex is brazenly lawless. In the flagrancy and magnitude of its errors in overriding, and cutting short, the democratic processes, Obergefell v. Hodges is rivaled in Supreme Court history only by Dred Scott v. Sandford (1857) and Roe v. Wade (1973).”

Following this, Lambda Legal’s Fair Courts Project Manager Eric Lesh said:

Sadly, we have seen the term ‘judicial activism’ become a weapon used repeatedly to attack a court when the speaker disagrees with a decision, especially with regard to civil rights. Senator Cruz has a history of railing against many of the more than 65 state and federal court rulings in favor of the freedom to marry over the last 2 years. That string of victories shows that striking down marriage discrimination, as the Supreme Court did in Obergefell, is anything but activist. 

Judges have a duty to uphold the Constitution, so when a law infringes on individual rights or equal treatment, judges have a duty to strike it down. Neither voters nor legislators get to decide whether they will “allow” individuals to exercise their constitutionally protected rights – having an independent judiciary protect the rights of minorities against the will of the majority is a bedrock principle of our democracy.

An attack against LGBT equality disguised as a legislative hearing against ‘judicial activism’ is a dangerous threat to the public’s confidence in our democratic institutions. Courts protect the rights of all Americans, not just the powerful and popular. So-called ‘possible solutions’ which infringe on those rights are the problem.

Lambda Legal’s Fair Courts Project operates on the principle that our justice system should operate exactly as intended—fairly and freely.