"As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration."
-From the dissenting opinion of Justice Martha Sosman on the recent Massachusetts Supreme Court case on gay marriage.
Conservatives and those who strongly oppose judicial activism have long complained that the federal Supreme Court has transformed itself into a body prone to fashionable social currents. On too many occasions, the nine justices have taken clear sides in America's ongoing culture war. However, the recent decision of the Massachusetts Supreme Court affirming the right of gay marriage has raised a much greater danger - the fight to retain the legitimate powers of the nation's legislatures is a battle for every court at every level of government.ÿ
Reasonable people can disagree on the role of religion in the public sphere, the suitability of exposing children to gay parents, and other hot-button issues that stir our deepest passions. Yet few can honestly and legitimately argue that un-elected justices construing opinions from invisible law is healthy for a democracy. Even more troubling, the most recent opinions on gay-related issues have turned out to be social science proclamations acceptable for the lecture halls of Berkeley not a court of law.ÿ
In their magnificent brilliance, the Founding Fathers established a republic based on a doctrine of federalism, where powers would be diffused across three branches of government, each with jurisdictions as well as limitations. The obvious intent behind this system was to guard against tyranny, to prevent any one faction from amassing too much power. But federalism is now rapidly approaching a constitutional deathbed because judges continue to arrogate to themselves more and more power away from legislators whose actions are accountable to the electorate. With the emergence of an aggressive legal campaign on behalf of the gay community, state courts are now mimicking the federal establishment with even greater frequency.ÿ
Gay leaders must understand that promoting judicial tyranny hardly advances what they perceive as a just cause. It only imperils liberty and allows future justices to interpret and draw upon legal authority that does not constitutionally belong to them. Constitutions are not mere parchments that should be tossed aside when cultural trends move in the opposite direction. They are sacred compacts between free peoples and the organized forms of government given the consent to rule.ÿ
If gay lobbyists want to affect change throughout the land, the Congress and the state legislatures are the appropriate venues. Admittedly, they would encounter resistance, and this is precisely why our form of government is the envy of the world. In a free society, competing interests are empowered with the tools to organize, peacefully assemble and petition lawmakers. No one is and should be guaranteed victory in the political realm, but citizens are given a fair shot to advance a point of view. All of this is savaged when a small few ask an even smaller number of officials to usurp legislative powers, concoct phantom laws, and turn courts into instruments of social engineering.ÿ
America's great admirers, from Alexis de Tocqueville to Paul Johnson, have defined this nation's strength in terms of its civic vitality and its unique tendency to discuss issues and problems within town hall forums, public hearings and private gatherings. Let's have an open and honest debate on the future of marriage. Let's just keep it confined to citizen groups and lawmakers, not imperial courts.