Judges, marriage and self-government
In referring to our form of government, Alexander Hamilton once said, “Here sir, the people govern”. But given the actions of some of the more arrogant members of our judiciary, there seems to be room for doubt.
In 2000, the people of California approved a statewide referendum defining marriage in that state as the union of one man and one woman, but in 2008 their state supreme court threw out that law (by a four to three vote of the court). So in November, 2008 voters approved a state constitutional amendment to overturn their supreme court’s decision and again take control of the definition of marriage in their state, just as voters in over thirty states have done.
It has been a mass expression of sovereign will on a single subject unlike few (if any) others in our nation’s history – and one at which activists judges continue to thumb their noses.
A few weeks ago, federal district Judge Vaughan Walker gave us the latest example of contempt for popular sovereignty by overturning California’s state constitutional amendment. It’s only the latest round of what has been an ongoing battle with activist judges.
The problem is that we have too few real judges in our country, and far too many would-be judicial oligarchs who see themselves as the “supreme” branch of our government, rather than just one of three. It’s the product of a philosophy that sees our constitutional structure as an eighteenth century anachronism, rather than the law of the land.
Jefferson once noted, the Constitution “is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” And so they have.
Their excuse is that the Constitution compels them to do so, which is rather strange given that those who wrote and ratified the Constitution or any of its amendments made no such pronouncements. So we’re left to assume that it’s taken a few hundred years of study in constitutional law for our betters in black robes to discover what was there all along? Whatever.
The current attempt to redefine marriage is built around conferring rights based on behavior. But where do the “rights” end? It’s one thing to have a right to certain personal behavior, but it’s quite another to have the right to demand that society sanction that behavior via the government and demand that everyone honor it.
At its heart, the push for recognition of gay marriage isn’t about rights so much as it is an effort to outlaw judgementalism; in effect, to outlaw opposing values, or at least living out or expressing those values, (especially when they run counter to a socially liberal agenda).
But all laws express values. The people, via the state, express preferences for certain behavior everyday based on collective morality. They discriminate. In the case of our government, these discriminations are made by weighing them in the balance between liberty and responsibility. Society’s obligation to leave you alone versus protecting agreed upon collective best interests. So, to say that we can’t express such preferences is to say that you can’t have government.
In the case of marriage and the family, society does have a vested interest, as it is the means of producing and rearing the next generation of citizens, which has a great deal to do with society’s survival.
It’s also worth pointing out that an attack on marriage is an attack on one of the three fundamental institutions of society itself; those being the family, religion and the state. Our government was organized such that the other two institutions could thrive, but in recent decades the state has gradually worked to supplant them both.
Then there is the issue of “the people”. The result of this case will determine whether or not all fifty states are likely to have their marriage laws rewritten by being forced to accept gay marriages performed in another state, or even just having all such laws nationwide overturned by judicial fiat, completely short-circuiting the political process. In other words, it’s Roe vs. Wade all over again.
But unfortunately, this issue is likely to come down to judges, which teaches us yet again that elections have consequences.
In the end Americans are presented with a very simple question that extends beyond just the definition of marriage. Do we, or do we not have a constitutional federal republic whose highest law forbids the national government (and its judges) from inserting themselves into such state issues?
Are we, as Reagan once said, “a people with a government, not the other way around”?
Are we a nation of laws, or of men?