urlington — Vermont
Supreme Court Justice
John Dooley did a
lawyerly review of definitions
of judicial activism, his topic at
an ethics symposium at the
University of Vermont in mid-
April. He looked at five cate-
gories of definitions and reject-
ed them all, although some
might have a grain of truth in
them, he suggested.
Then he revealed what

 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
  
  
 
 
 
 
  
 
 
  
 
  

he really thought politicians
mean when they sling the_,term
at sitting judges: “First, it;s
about sex,” the justice said to
the audience’s quiet but know-
ing laughter.

Dooley had said he
would relate the question of
judicial activism to the Bakerv.
State decision, which required
Vermont to-afford all the bene-
fits of marriage to same-sex
couples, and to the United

States Supreme Court’s ruling
in Lawrence v. Texas, which
struck down that state’s sodomy
laws (see “Blind Justice” in the
April 2003 issue and “We
Won!” in the August 2003 issue
of OITM for background on
Lawrence). _

The five charges or
indicators Dooley found in a
database search (5000 hits on
“judicial activism”) included:
striking down a law adopted by
a legislature; ignoring prece-

dent; legislating from the

bench; departing from _accepted
judicial methodology; and issu-
ing a results—oriented ruling.
Dooley argued that nei-

ther the Baker decision nor the
Lawrence decision of the U.S.
Supreme Court met these crite-
ria, or if they did, the charge of
judicial activism was unwar-
ranted. Striking down laws is ,
part of the justice’s job when
they conflict with founding doc-

’ uments, for example. And the

Bakerruling, he said, was “cer-
tainly ntpt” results—oriented, or
the court would not have turned
the matter back to the legisla-

ture to address. For the same
reason, it did not qualify as
“legislating from the bench.”
The justice defended
the judicial process the Baker
court used as one that was
clearly set out 25 years ago by
Justice Hayes in State v. Jewett:
considering what the Vermont
constitution says, the text of the
law and the history of its cre-
ation, whether other states have
laws with similar language, and

the historical and sociological
environment.

And, he said, as far as
“ignoring precedent,” in the
Baker case, “there was no
precedent to ignore The
Lawrence ruling did not
“ignore” precedent, it explicitly
overturned it by repudiating the
previous ruling on privacy and
sexual acts between consenting
adults of the same sex in
Bowers v. Hardwick.

The three things that
charges of judicial activism are
really about, Dooley said, are
sex (the culture wars, often
involving religious views of
sex); equal protection and sub-
stantive due process; and
whether you think the decision
is right or wrong. i’

The founders, he
added, “didn’t write much about
sex in the Constitution: liberty,
equality, yes, but not much
about sex. If you take sex and
add the culture wars, it adds to
the likelihood that [a given rul-
ing] will be labeled judicial
activism.”

Supporting his second

point, Dooley said, “Whenever
you’re relying on equal protec—
tion, you’ll have a charge of
judicial activism.” Equal protec—
tion and due process rights are
based on the 14th Amendment,
and “there’s not a lot of content
in there.” Vermont’s Common
Benefits clause, on which the
Baker decision was based, “is
equivalent to the equal protec— '
tion clause. We’re dealing here
with a document from 1777. It

 

expresses a view of equality
very different from ours, one in
reaction to royal privilege. We
are interpreting texts that are
incredibly old, archaic, vague,
and broad.”

His final point would
seem to be self—explanatory, that
charges of judicial activism
arise when someone thinks the
decision is wrong. “Thank God
for Tom DeLay,” Dooley said to

L laughter from the audience. “It’s

just that he makes this point
very clear.” The reference was
to the Terry Schiavo case in
Florida, and Congress’s passage
of a federal bill that applied
solely to her case and directed
the federal courts to start the
case over from scratch. The fed-
eral judiciary refused to rehear
the case. Dooley summarized
DeLay’s commentary this way:
“.‘We told you what to do, you
didn’t do it, and now there’ll be
hell to pay.”’

"He disputed the charge
that judges “want vague lan-
guage” so they can impose their
own values. “That’s wrong,” he
said. “We need to modernize
our constitution. Vermont’s is
the oldest, least amended, and
shortest among the state consti-
tutions. More recent constitu-
tions are more progressive.” A

He acknowledged that
opening the founding document
to change could be “scary,”
since “all of a sudden you’ve
got somebody wanting to use it
to define marriage.” But he
insisted that the justices’ job
would be easier if amending
and modernizing the state’s
constitution were not “nearly
impossible” as he said it is in
Vermont. “Give me a better
document.” V

Taking the House: NH Medicaid Rules Threaten Gay) Survivors

Concord, NH — According to a press
release from the New Hampshire
Freedom to Marry Coalition, HB69l
(the Granite Care Bill) would revise
the Medicaid program and allow the
state to seize property (including a
house) held in “joint tenancy with
rights of survivorship, tenancy in com-

mon, life estate, living trust or other
arrangement" of a person’s estate.
Paragraph 9 of the bill
allows the seizure in order to reim-
burse the state for Medicaid expenses
incurred by the decedent.
The survivor of a same-sex

couple could be in jeopardy of losing '

his or her home because of Medicaid
bills. A legally married spouse is
exempt from such Medicaid claims.
Unless amended, the provision allows
just 45 days after the death of a loved
one before state action.

The bill also contains a pro-
vision that makes all transfers of prop-

erty for less than full market value,
looking back five years, subject to
claim. The “look back” for trusts is 10
years.

HB69l also exempts from
the state’s Medicaid reimbursement
claims not only legally married spous-
es but also those who purchase three

years of long—term care insurance.
The bill was due to come to

the floor in its amended form at press
time. The NH Freedom to Marry
Coalition was seeking to mobilize
members and allies to get the bill
changed. V

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