By Jason Tolbert

As Washington gears up to fill a vacancy on the U.S. Supreme Court, Arkansas gets its own taste of judicial activism. Last week Circuit Judge Chris Piazza overturned a law prohibiting unmarried cohabiting couples from being foster or adoptive parents.

The issue has been around for some time. The Family Council of Arkansas sought to have the rule passed through the Legislature and when that did not work, they took it to the people through the initiated act process. This process involved several hurdles.

First, they had to get the language certified by Attorney General Dustin McDaniel. This process involved several back-and-forth exchanges. Then, they had to gather over 60,000 signatures to get the measure on the ballot. They turned in over 85,000. Finally, they had to get the measure approved by the voters. In November 2008, they won approval of 57 percent of Arkansas voters.

But a month after passing, the American Civil Liberties Union sued the state of Arkansas on behalf of several plaintiffs, who claimed the law violated their rights. McDaniel, who opposed the law and contributed to the effort to defeat its passage, was charged with its defense. He wisely brought the Family Council in to assist with the defense.

Judge Piazza struck down the law, writing, “The Act significantly burdens non-martial relationships and acts of sexual intimacy between adults because it forces them to choose between becoming a parent and having any meaningful type of intimate relationship outside of marriage. This infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas.”

“This ruling is a classic case of judicial tyranny,” responded Jerry Cox, executive director of the Family Council, shortly after the ruling. “While 57 percent of the state voted for the law in a fair election, one judge thinks he knows better.”

The case is now on its way to the Arkansas Supreme Court as both McDaniel and Cox have said they plan to appeal the decision. Cox pointed out that this is an example of why the upcoming elections to fill the two open positions on the Supreme Court are so important.

But here is an example of where the frustration lies with activist judges. It is almost impossible to find out where the judicial candidates stand on such issues. In fact, they are prohibited from discussing almost any issue that might potentially come before them.

Voters instead are forced to base their vote on vague statements about judicial philosophy along with an assortment of endorsements. Take Supreme Court candidate Judge Courtney Henry for example. She says that her favorite U.S. Supreme Court Justice is conservative Chief Justice John Roberts and she says she has a “very conservative approach to the law and consider myself a constructionist when it comes to constitutional matters.”

Does that mean she is a conservative? Perhaps, but her support comes from both directions. Just this past week she had a fund-raiser jointly sponsored by former Republican Congressman John Paul Hammerschmidt and former Democratic President Bill Clinton.

Similar difficulty lies in discerning the philosophies of the other candidates. This is one of the main problems with the activist judges who legislate from the bench. Assuming voters and the press do their job, candidates for the legislative or the executive branch are forced to take a stand on issues they will face while in office. Judicial candidates bypass this scrutiny for the sake of remaining impartial. However, when judges become activists, the system quickly breaks down.

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Jason Tolbert is an accountant and conservative political blogger. His blog — The Tolbert Report — is linked at ArkansasNews.com. His e-mail is jason@TolbertReport.com