I've had several pieces rejected by NM's David Frum (often for good reason). Editor/publishers get to set the tone and that is as it should be. As many of you likely suspected, some previous pieces on this treehuggin site were too godly for NM . . . and that was fine. The problem never was what pieces of mine David rejected---it was that the traditional viewpoint was rarely being highlighted at all on NM.
The following post was actually invited by David in response to my persistent prodding on judicial activism. It was my hope that this process issue could be a unifier among conservatives and moderates at NM. After several rewrites, I thought we were getting there and hoped that this would run the day that the California Supreme Court released its latest opinion on Prop 8. Instead Frum that day started a love train for Ted Olson's new effort to enlist judicial activism and take gay marriage nationwide with a new Obama justice headed for the Court.
Granted, Olsen's effort was noteworthy, but it certainly wasn't conservative. This was the judicial equivalent of Arlen Specter biting the hand that fed him and going Democrat. Ted Olsen, former Bush Solicitor General and Federalist Society darling, was now embracing the two words that legislators-from-the-bench love most: equal protection. For when you really, really care deeply about something, you don't trust the people when you only have to convince 5 justices.
After some time away, it became clear that the drums of gay marriage would only beat more loudly even as David tried to simultaneously dampen the good news that more Americans now consider themselves pro-life than pro-choice. A bloody hand graphic implying that I as a long time pro-lifer had helped to pull the trigger and kill an abortionist was just the icing on the cake.
And so now, without further interruptions, what NM didn't want you to see (don't get too excited, it's not really that shocking) . . .
How Not to Bake a Gay Wedding Cake
California’s game of gay marriage ping-pong will likely continue today. After voters passed Proposition 8 to effectively undo a 4-3 state supreme court decision mandating gay marriage, the Court may now try and undo the undoing. As I write, the opinion has not yet been released but already it is clear that this is a game that never should have been started. Judicial activism is a sloppy way to begin a social revolution. [Note: The state Supreme Court, with one dissenter, ultimately reached the correct decision that their institution must be bound by an explicit and legally enacted constitutional amendment. Why this was ever a question at all is still baffling.]
After the Massachusetts Supreme Court first usurped democratic means in 2003, other judges soon sought to follow suit and marriage traditionalists were further spurred to codify in writing what had long been held as culturally axiomatic: that a marriage is between one man and one woman. And so today in the strange world of gay marriage, we find the practice legal in corn-fed Iowa and illegal in the land of fruits and nuts, California. Process matters, and when courts get involved things start looking weird.
In Iowa, the legislature thought it had spoken clearly on the issue in 1998. A decade later, an appointed body declared that the state must recognize new rights even though those rights “have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.” The Iowa decision mocked words in the opinion itself: “The constitution belongs to the people, not the government or even the judicial branch of government.” While its logic was suspect, the message was clear: Iowans of today and you constitutional framers who would have never dreamed that the words “equal protection” require gay marriage, it is time to take your medicine whether you like it or not.
Taking a page from Brown v. Board of Education, which with its footnote 11 famously brought social science stumbling into the courtroom, the Iowa Supreme Court spent pages summarizing the gay plaintiffs’ expert opinion evidence to show that homosexuals are good citizens and good parents. Those defending the one-man/one-woman statute had their evidence summarized in a single short and terse paragraph.
The unbalanced litany of dueling experts was not a legal maneuver, as the posture of case made nothing but the legislature’s reasoning germane. To put it bluntly, the justices set aside the impartial scales of justice and put on their public relations hats. The court even issued a press release so fawning reporters would not have to read the 69 page opinion. When decisions are made with a focus on broad public policy rather than a specific case, and opinions are written to placate the public rather than interpret the law, courts have lost all sense of their proper role.
Unlike Iowa and California, Vermont recently instituted gay marriage through its normal legislative process. All the democratically elected players played their part. The legislators crafted a bill that attempted to recognize the rights of religious objectors and then voted on it; the governor vetoed the bill; and the veto was overridden by a super-majority.
The fact that Vermont took this step saddens me, but I can at least acknowledge that the move was made in keeping with a republican form of government. It may be a disastrous win for the foundations of society, but at least it was a clear win for democratic processes over judicial fiat.
Homosexual rights proponents have attempted to appropriate the language of civil rights, much to the dismay of many in the black church that birthed that movement. And to the dismay of all who favor democracy and a separation of powers, this new movement is also seeking to follow the flawed and counterproductive path of judicial activism. As University of Texas constitutional law professor Lino Graglia noted in Disaster by Decree, his exhaustive examination of the long, bitter, logically contradictory, and ultimately abandoned march from Brown to busing and federally run local school districts:
The Brown case was less a traditional law suit than a call for a social revolution, and in a healthy democracy social revolutions are made by elected representatives authorized to effectuate their political views and accountable for the results. The fact that this revolution was made, or greatly advanced, by judges soon led to many other revolutions, much less justifiable, being made in the same way.
When the robed ones seek to solve a major social problem they usually just create more heat than light.
Citizens disagree about the propriety of gay marriage, and I welcome a vigorous policy debate that is not afraid to explore the religious, social, and governmental principles associated with marriage. Policy-wise, there is a lot to talk about as marriage was already put on the ropes by easy divorce and co-habitation long before the same-sexers entered the picture. Strangely, to my ears, the damaged state of the institution has been cited by some as a justification for this latest marital revolution. In other words, you straights have already run marriage into the ditch, why should you care if gays try and get behind the wheel for a while.
Perhaps these advocates have a point, but it’s not a point appropriate for litigation. That’s something we should all be able to agree upon.
.
No comments:
Post a Comment