Judges Raise Conservative Hackles

But scholars say court is fulfilling its constitutional duty

A spate of recent controversial court decisions is raising the ire of conservatives who charge that judicial activists are usurping the popular will.

But scholars and civil-rights lawyers say the courts are playing their long-standing, and well-precedented, role of guardian of constitutionally-protected rights.

The two most recent cases in point: The decision last week by a federal judge in San Francisco temporarily halting implementation of Proposition 209, a California ballot measure passed in November that would potentially bar programs that give preference to women and minorities. The other was Tuesday's ruling by a circuit court judge in Hawaii that a state ban on same-sex marriages was unconstitutional.

"The judiciary is not respecting the balance of powers and instead is becoming the top of the pyramid," says Kristi Hamrick, of the conservative Family Research Council. Counters Michael Laurence, a civil-rights attorney in San Francisco: "Any federal judge who upholds his or her oath to the federal Constitution is subject to this sort of attack. That's why we have the Constitution - to protect the minority against the tyranny of the majority."

Conservatives point to a number of cases in recent years that they believe constitute a trend of the courts thwarting the increasingly conservative mood in public policy. In another prominent California case, a federal judge blocked implementation of a proposition barring benefits to illegal immigrants after its passage in 1994.

And a Supreme Court decision earlier this year invalidated a Colorado state constitutional amendment preventing local and state governments from enacting anti-discrimination laws for homosexuals.

"When [opponents of such measures] can't win in the ballot, they bring their politics into the court," says Sharon Browne, a lead attorney for Proposition 209 authors in federal court.

But University of California at Berkeley law professor Franklin Zimring notes such "activism" is being done by conservatives as well as liberals. He cites the case brought to the US Supreme Court this week by gun control opponents hoping to overturn the Brady handgun law. In any case, the courts are rightfully carrying out judicial review, ensuring there is "quality control in the legislative process," he says.

The need for review is greatest in the case of laws adopted by ballot initiative, says constitutional scholar Gerald Uelmen of the Santa Clara University law school. The ballot measures are often poorly drafted, reflecting political rather than policy aims, he says.

In both the Hawaii case and California's Prop. 209, the underlying legal issue was the same - the right to equal protection. That right is codified in the Fourteenth Amendment of the Constitution, enacted after the Civil War to protect the rights of newly freed slaves.

Based on that clause, the Supreme Court has upheld certain kinds of government efforts to redress discrimination, including forms of affirmative action.

The American Civil Liberties Union contends that Prop. 209 violates the 14th Amendment, arguing that it freezes current discrimination in place, taking away remedies to rectify that inequality. The ACLU cites several Supreme Court decisions as precedents, including the overturning of the Colorado gay rights initiative.

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