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February 24, 2004
No One to Blame But Themselves

As I have often predicted, the radical activism of the judiciary in imposing changes in the basic social unit in opposition to the will of the electorate has resulted in an equally radical reaction -- a full-fledged mainstream constitutional amendment process to permanently define marriage:

President Bush said Tuesday that he supports a constitutional amendment banning same-sex marriage to "prevent the meaning of marriage from being changed forever." ... "On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse. If we're to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America. Decisive and democratic action is needed because attempts to redefine marriage in a single state or city could have serious consequences throughout the country."

He called on Congress to "promptly pass and send to the states for ratification" an amendment that would specifically define marriage as the union of a "husband and wife."

Despite the passage, by wide margins, of laws defining marriage as "one man and one woman" in states such as California, judges and municipal officials have continued to act in defiance of the law, preferring to legislate from the bench or from the executive instead. Such corrosive practice only serves to further damage the democratic processes upon which this nation was built, and the danger is so patently obvious that it seems to be escaping those who can't see the forest for the trees.

For the record, as I've repeatedly stated, I don't have an issue with gay marriage. Personally, I think that the institution of civil marriage has been damaged to pointlessness; it remains the only contractual relationship I know where one party can abrogate the contract with no penalty. I believe that arguments surrounding the "sanctity" of marriage are based on religious beliefs and therefore only apply to those who voluntarily practice those religions. Since any unmarried adult hetero couple without close blood relation can get a marriage license, in some jurisdictions with less thought and safeguards than a driver's license, and that marriage can be dissolved with only slightly more effort, government oversight is already so lax as to make the "sanctity" argument useless.

However, it still should be left to the people to determine the laws under which they will be governed. The Constitution was crafted to require this process, and judges only reviewed the laws to make sure that they did not directly contradict the Constitution itself. Since the 1950s, for better and for worse, the American judiciary has taken it upon itself to craft its own legislation from the bench in the guise of intellectually murky "interpretations" of Constitutional provisions, invoking emanations from penumbras in order to create what the justices saw as a greater social good. But that's not their job -- that's the job of the Legislature. Judicial activism is an arrogation of power away from elected representatives, who are held responsible to the people on a regular basis, and into the hands of those who hold lifetime appointments, and whose decisions cannot be overruled except by other judges.

Because this activism takes power away from the people, any attempt to reach a nuanced, rational position is eliminated, and the only way the people can take the power back is to amend the Constitution to repair the damage the judiciary has caused. Constitutional amendments are not subtle items; they are legal sledgehammers. It effectively forbids each state from reaching a position which reflects their public mood.

Gavin Newsom and an arrogant judiciary will do far more damage to the idea of gay marriage than any momentary relief their actions provided. They will have lost the centrists and libertarians on this issue who, like me, didn't have a problem with the concept of gay marriage but who will not allow legislative power to be tranferred to star chambers. In a representative democracy, issues should be debated and decided by our representatives, not by a few men and women in black robes. Otherwise, we risk turning our Congress into the Iranian Parliament and our federal judiciary into the Supreme Governing Council.

UPDATE: While most people seem to be crying in their beer about Bush being anti-gay or kowtowing to religious zealotry, Hugh Hewitt gets the issue correct even though we don't agree on gay marriage:

When courts dictate law, as has happened in Massachusetts, or when low-ranking, publicity-grabbing officials make up the law, as is happening in San Francisco and may soon happen elsewhere, then freedom is diminished because the rule of a few is substituted for the rule of elected legislatures. There is no covering up this most basic of issues: Who runs America? Shall it be the people or shall it be the courts and a host of petty officials from micro-climates on the political map?


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Posted by Ed Morrissey at February 24, 2004 12:55 PM

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» Federal Marriage Amendment from Back of the Envelope
The irony is that gay and lesbian activists, attempting to circumvent popular will by seeking court action rather than the legislative process, may have managed to block their own path. Overturning a constitutional amendment will be a much more diffi... [Read More]

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