DOMA Supreme Court: What Is "Judicial Engagement," and Why Could It Save Same-Sex Marriage?


On Monday, CATO Institute Senior Fellow Ilya Shapiro wrote that in Fisher v. UT-Austin the Supreme Court “provided a narrow victory for judicial engagement.” Most people don’t know what judicial engagement is, but it is arguably the ideal judicial philosophy. Wins for gay marriage at the Supreme Court this week in the Proposition 8 case, Hollingsworth v. Perry, and in the DOMA case, United States v. Windsor, would likely mean the court is practicing judicial engagement. Engagement is somewhere between judicial activism and restraint. It allows judges to fulfill their constitutional duties and keep government in check, without overstepping their constitutional bounds. It also helps the question of federalism resolved.

My introduction to judicial engagement came last November at a Federalist Society convention. I listened to a panel on which Georgetown law professor Randy E. Barnett spoke. He expertly explained judicial restraint, activism, and engagement, respectively. I then researched these concepts more in-depth. While not a lawyer myself, I took away the following understanding of these terms.

Judicial Activism

According to, Judicial activism is “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.” However, this definition is misleading. Judicial activism in Wickard v. Filburn, among other cases, has bent the Commerce Clause “to the point of breaking” in order to limit individual rights. Additionally, legislative intent is not inherently constitutional — these factors are wholly independent.

Judicial Restraint

According to, Judicial restraint is “a refraining in the judiciary from departure from precedent and the formulation of broad doctrine.”  When the Supreme Court rules, it almost necessarily creates precedent to be used in future cases. While justices should be mindful of the implications of their decisions and the precedent they may create, it is illogical to avoid setting precedent when appropriate. Justices are fallible, and sometimes set bad precedent, as is arguably the case with the continuous contortion of the Commerce Clause.

Judicial Engagement

Judicial engagement is lesser known than restraint and activism. One definition of judicial engagement is “the act of properly judging by engaging in the facts of every case and requiring the government to justify its actions with real reasons, backed by real evidence.” 

“Deference” is a vital word. Engagement doesn’t take a back seat in the same way as judicial restraint. The latter theoretically sits back and claims lack of jurisdiction and constitutionality when the opportunity is given to strike down unconstitutional laws. It then defers to lower courts. Engagement asserts that striking down unconstitutional laws is the judiciary’s proper role.

Some believe this practice, called “judicial review,” is in itself unconstitutional because it is not a power expressly defined in the Constitution. While this is true, Randy Barnett explains that Article 3, Section 2 of the Constitution naturally leads one to conclude that judicial review is an appropriate exercise of judicial power.

The declaration of the Institute for Justice’s Center for Judicial Engagement explains the proper role of the judicial branch is to enforce the Constitution and prevent government from acting unconstitutionally. The declaration laments that “courts have instead shown an increasingly misguided deference to other branches of government.” The court practices “abdication,” not restraint, when absolving itself of its duty. Engagement also compels divergence from rulings “that ignore, dilute, or otherwise render meaningless constitutional limits on government power.” While judicial activism disregards constitutional meaning, engagement deviates from prior rulings’ disregard for constitutional meaning.

Clark Neily of the Institute for Justice explains in The Bell Towers that engagement “is the antidote to decades of judicial abdication that have left us with far more government and less freedom than the Constitution means for us to have.”

Applying Judicial Engagement

Anthony Sanders of the Institute for Justice explains that government is expert at creating irrational bureaucracy and laws that defy the Constitution. He argues that instead of deferring to “the whims of zoning boards, judges should begin doing something novel” – judging. He advocates for engaging state and federal constitutions with the facts of cases and objectively determining whether or not the government acted constitutionally, without the illogical inclination to err on the side of government.

It is common for those who oppose same-sex marriage to advocate for a federal definition of marriage as one man and one woman, and to contradictorily argue states should also have the ability to define marriage without interference from the court. DOMA is a federal law restricting federal benefits and recognition had by same-sex married couples. Proposition 8 is a state “ballot proposition and a state constitutional amendment … which provides that ‘only marriage between a man and a woman is valid or recognized in California.’” Many who seek to uphold both laws simultaneously argue that the court should not rule on Proposition 8, which they claim would be an infringement on states’ rights. But those who argue the federal government must prevail in one case but not a similar case where doing so would not suit their policy preferences, are practicing what some refer to as “selective federalism” — advocating that state governments have the final say, but only when it suits their needs.


Many gay-marriage opponents also argue that striking down DOMA or Proposition 8 would create a dangerous precedent of only enforcing those laws we like. If these laws are opposed to the Constitution, they should necessarily be stricken regardless of whether we favor them. Judicial engagement says the court should rule on both DOMA and Proposition 8.

Alliance Defense Fund Senior Legal Counsel Austin R. Nimocks, who defended Proposition 8 before the Supreme Court, cited the precedent of rejecting same-sex marriage as reason to uphold both laws. Pursuant to judicial engagement, if precedent constricts liberty without a constitutional basis or infringes on the Constitution, the court is compelled to diverge from it. Precedent itself may not justify upholding a law. The attempt to do so is the legal equivalent of a parent saying “because I said so” — the parent has not justified his actions nor is he infallible, but the child’s question is answered by a phrase with which he cannot argue, unless he is to argue against the inherent validity of his parent’s word.

While eagerly awaiting the rulings in United States v. Windsor and Hollingsworth v. Perry, gay marriage advocates and those who want a more logically operating judicial branch should hope the Supreme Court starts a trend of judicial engagement. The issue in both the Proposition 8 case and the DOMA case is whether the respective laws violate the Equal Protection Clause of the Fourteenth Amendment. Engaging the facts of the case with the Constitution is the only way to possibly strike down either, and it is the best practice for a functional court.