I've heard the term "activist judges" for the very last time.  Or at least I've reached my limit and have to say something.  Campaigners, politicians, and even average citizens in Arizona have been throwing the term around as though it were an accepted fact, and the concept featured prominently in the recent campaign to pass Proposition 102 in Arizona, which banned same-sex marriage in our state constitution.  The very concept flies in the face of our form of government and our Constitution, and it is one of the most brilliant lies ever concocted by the conservative far right.

Arizonans, however, believe the great lie wholeheartedly.  The television adds supporting Proposition 102, replete with soft, upbeat music that one would listen to while selecting a pew, featured interviews with "average" (read: very white, clean-cut) Arizonans who proudly informed us that they would vote in favor of the measure so that judges couldn't overturn the will of the majority.  They accepted the idea wholeheartedly with doe-eyed simplicity and a complete misunderstanding of civics.  The cynic in me screams that it's merely a ploy, an attempt to mask their understanding that they can't really use religion as justification for a constitutional amendment.

But then I realized that it's never stopped conservatives in our state before.  I've watched from my former job at the state legislature as our representatives and senators overtly used religion to justify their votes and lobby support for their measures.  They truly, deeply, believe that somewhere, in some dark corner of a courthouse, "activist judges" are conspiring to steal liberty away from us and destroy democracy as we know it by "legislating from the bench."

The cure: a basic re-education in civics.  Rather than some vast liberal conspiracy, the fact that courts hand down decisions that contradict or even overturn the will of the majority is proof that our judicial system is functioning precisely as intended.  Protecting the rights of minorities is one of the primary functions of our courts.  Where would we be without such landmark decisions as Brown v. Board of Education (1954)?  Desegregation of our public schools was not the will of the majority, but the Supreme Court understood that it violated the basic principles of our Constitution, and we are better because of it.  If Miranda v. Arizona (1966) had never been handed down, people accused of crimes might still find themselves having confessions coerced from them.  Arizona is again at the center of the issue as it appears that an eight-year-old child, charged with two counts of first-degree murder, "confessed" to the crimes without an attorney present, probably entirely unaware of what an attorney or first-degree murder even are.  Due process rights have never been something overwhelmingly popular that the majority would support.  When Miranda v. Arizona was handed down, there was no eight year old accused of murder.  After all, they're just criminals, right?  Never mind that anyone could be accused of a crime at any time for little to no real reason.  The courts saw the need for this important right and acted to protect a minority: those accused of crimes.

 The people who buy into the "activist judges" myth, however, have probably never even heard of these or other similar decisions that have had a profound effect on the rights of Americans.  And therein lies the brilliance of the lie: it blatantly exploits ignorance of the American system of government.  There exists a pervasive popular belief that "majority rules" is the law of the land.  It isn't.  It never has been.

I was reminded of just how dangerous pure majority rule can be when listening to a story on National Public Radio about the civil war being fought in the Congo.  One ethnic group is in power, and the minority feels that its concerns are being ignored by its government.  The government goes on its merry way.  After all, majority rules.  The result is violence on a large scale.  The story is not one unique to the current African conflict; rather, it is one repeated time and time again throughout the world.

The power of the judiciary system to overturn the will of a majority who seeks to exclude a minority is absolutely essential to maintaining a peaceful, democratic society.  If the majority refuses to act, the minority still has recourse through our legal system, preventing the need to turn to violence.   This safeguard is precisely what makes the "activist judge" myth so dangerous in addition to being so brilliant.  Granted, it could easily be defeated by a coordinated effort to re-educate Americans on the role of its judicial branch, but who would undertake such an effort?

 Or perhaps the civics lesson could be taught through a massive overturning of majority opinion.  Enter the current position of the gay rights movement's press for marriage equality.  Imagine for a moment that the United States Supreme Court issued a ruling that state laws or even constitutional amendments violated the equal protection clause of the Fourteenth Amendment: the same avenue that has been used to assert the rights of African Americans, women, and yes, even gays and lesbians.  What better catalyst to spark a spirited debate about the true role of the judicial branch of our government? 

 And now that the right wing hardliners are removed from power, such an action would not come at the risk of a severe backlash against the judiciary.  The groundwork is already in place.  As I mentioned before, the Supreme Court has previously issued rulings in favor of gay rights through the equal protection clause of the Fourteenth Amendment.  In Romer v. Evans (1996), the Court overturned an amendment to the Colorado state constitution that prohibited any level of government within the state from passing anti-discrimination measures.  More current is the 2003 case Lawrence v. Texas, in which all state sodomy laws were overturned.

The opportunity needed to mount a serious challenge for marriage equality and simultaneously shatter the right wing myth of the "activist judges" may have come from our neighbors to the west.  California's passage of Proposition 8, which does essentially what Proposition 102 does in Arizona, represents the first time that voters have passed a constitutional amendment through initiative or referendum in a state where same-sex marriage was already legal.  In short, the vote specifically took a right away from a selected sub-section of the population.  Such an act, given the precedents established for gay rights and for rulings involving the Fourteenth Amendment, may be precisely the legal foothold needed to overturn bans on gay marriage nationwide. 

If such a ruling were to be issued, the outcry from the far right would be swift, shrill, and pervasive.  At the center of their criticisms would be the great, brilliant lie of the "activist judges," forcing the concept into the media and into our national debate so that it might just receive the widespread scrutiny that it so desperately deserves and needs in order to put it to rest.  And as an added bonus, a portion of our population that has for so long been denied the basic (secular) legal protections of marriage would find itself the beneficiary of a monumental re-education in the true workings of American government.