The (Relative) Passivity of Goodridge V. Department of Public Health

Abstract

The charge of judicial activism is sure to follow when the exercise of judicial review upsets a majoritarian preference, as in the 2003 case Goodridge v. Department of Public Health, in which the Massachusetts Supreme Judicial Court held that the denial of marriage licenses to same-sex couples violates the state constitutional commitment to equality. But it is often unclear just what "judicial activism" means. One understanding equates judicial activism with a court's efforts to enhance the judiciary's power vis-a-vis other sources of public authority. Using this formulation, this article seeks to explore where Goodridge falls on the continuum between judicial passivity and judicial hegemony.

Keywords: Same-sex marriage, Passivity , Psychology, Marriage licenses, Remedies, Judicial activism , Equality before the law, Government regulation