Opinion: 2010 -- The Year the Courts Stood Up for Gay Rights

"Activism" is a reviled word in certain judicial and political circles, and yet it is "judicial activism" that has struck down many of this country's injustices when presidents and legislatures were unwilling to do so.

Most famous, perhaps, is the 1954 Brown v. Board of Education Supreme Court decision ordering the desegregation of public schools. Later, White House-supported congressional initiatives like the 1964 Civil Rights Act went further to stamp out Jim Crow, but it was the courts that gave the civil rights movement its first great institutional imprimatur.

In similar fashion, 2010 may someday be remembered as another watershed year for civil rights and the courts.

In September, U.S. District Judge Virginia Phillips of California's Central District, a Bill Clinton appointee, suspended enforcement of the military's "don't ask, don't tell" policy, ruling that the policy violated both the Constitution's First (free speech) and Fifth (due process) Amendments.

Now that Congress has voted to end DADT, Phillips' decision has been overshadowed. But it was the courts that moved on the issue before President Barack Obama, who could have ended the policy earlier by issuing an executive order, and Congress, which dithered until this eleventh hour lame-duck session.

Meanwhile, the courts also stepped in to defend gay rights concerning marriage.

Just as President Clinton shamefully put his signature to DADT, he also signed the Defense Against Marriage Act, which mandates that the federal government define marriage as a legal union between a man and a woman. But since the law was passed in 1996, six states -- California, Connecticut, Iowa, Massachusetts, New Hampshire and Vermont -- have legalized same-sex marriage through either legislation or court ruling. (Another 30 states have passed constitutional amendments prohibiting same-sex marriage).

In 2008, California passed Proposition 8, a ballot initiative to restore the state's legal definition of marriage as a union between a man and woman. But this past August, in Perry v. Schwarzenegger, the U.S. District Court for the Northern District of California ruled that Prop 8 was unconstitutional, as it violates the 14th Amendment's due process and equal protection clauses.

Both DADT and Prop 8 deny gays and lesbians the rights enjoyed by other Americans, and supporters of these discriminatory policies have yet to muster a convincing argument why these rights should be denied to these citizens. DADT's defenders pointed to the fact that some troops -- although a minority, according to a recent Defense Department study -- are uncomfortable serving with homosexuals.

But homosexuals have served throughout the country's history, albeit not always openly. And other militaries -- including Israel's -- allow open homosexuals to serve. Besides, the same objection applied when the military opened its ranks to blacks and women. Surely, appeasing bigots shouldn't form the basis of American military policy.

The main objection Prop 8's defense team advanced in defense of the ballot initiative was that government-sanctioned homosexual marriage somehow debases heterosexual unions. It was another appeal for appeasing the bigotry of others. Again, many were (and are) offended by interracial marriage, but is that a credible reason for miscegenation laws?

Legalizing same-sex marriage is "the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation," writes Ted Olson, one of the lawyers who argued against Prop 8.

For many, Olson seems an unlikely advocate of gay rights. He's a lifelong Republican who served the Reagan and George W. Bush administrations, and he argued the winning side in another famous "judicial activist" Supreme Court decision, Bush v. Gore.

Homosexuals deserve the constitutional rights enjoyed by other Americans, Olson argues, and what is marriage if not a conservative ideal?

But what of that conservative bugaboo "judicial activism?" Fox News' Chris Wallace recently asked the attorney. Olson replied, "Most people use the term 'judicial activism' to explain decisions that they don't like."

Paul Wachter, co-founder of againstdumb.com, writes for The New York Times Magazine, The Atlantic and The Nation, among other magazines.