Homosexual 'Marriage' Judicial Activism; Democratic Process Should Govern Cases

Article excerpt


The news that the Supreme Court will hear appeals of lower court decisions overturning the Defense of Marriage Act and California's referendum banning homosexual marriage has inspired cautious optimism among the practice's advocates. As one advocate told the New York Times, We've made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country. Another declared, There is no doubt that the wind is at our backs. The constitutional implications of these cases cannot be overstated. How can we call our system of government democratic when five unelected, life-tenured and unaccountable judges can irreversibly change the meaning of our Constitution?

Confronted with an earlier Supreme Court that thought to solve another profoundly divisive national issue by judicial decree, Abraham Lincoln warned that if the Supreme Court was allowed to profoundly alter constitutional meaning, the people will have ceased to be their own rulers, having ... resigned their government, into the hands of that eminent tribunal.

As homosexual marriage advocates noted, their cause is making steady advances both politically and in popular opinion. Why abandon democratic change when they are winning the democratic argument? To resort to judicial dictate is to renounce government of the people, by the people, and for the people.

It is often pointed out that racists used this argument against the Supreme Court's critical civil rights decisions in the 1950s and 1960s. However, there is a fundamental jurisprudential difference between those cases and the homosexual marriage cases now before the court. In the 1860s when the 14th Amendment was enacted, there was controversy about its exact meaning (hence its atrociously vague wording). Yet everyone knew that it was about the rights of black Americans. As Judge Michael McConnell has shown, the civil rights decisions are easily justifiable on originalist grounds. If the worthies of the 1860s had been told the 14th Amendment would be interpreted as allowing two men (or two women) to marry, the amendment would not have received a single vote in Congress or any state legislature. Extending the 14th Amendment to homosexual marriage is a fundamental distortion of its original purpose. …