In courtrooms across the nation an extraordinary thing has happened: In a spate of decisions, judges have deferred to important policy judgments rendered by democratically elected legislatures or by the people themselves in referenda. It obviously hasn’t been easy for judges to give up their self-appointed role as super legislators, fit to rewrite any laws based on the whimsy of the hour. They have done it only reluctantly and by narrow margins.
But, for now, the popular will on the issue at hand in these decisions — same-sex marriage — seems safe from arbitrary judicial override. At least until the next decision (coming down imminently from the New Jersey supreme court). In New York, Georgia, Nebraska, Connecticut, and — just a few days ago — Washington State, state and federal courts have refused to create a right to gay marriage. They have thus frustrated the strategy of supporters of gay marriage, who, in keeping with the thrust of liberal social policy during the past 40 years, had hoped to impose their policies through the courts.
The judges aren’t going along — at least not enough of them, at least not yet. The majority opinion in the 5-4 decision by the Washington State supreme court gently chides the minority: “Perhaps because of the nature of the issue in this case and the strong feelings it brings to the front, some members of the court have uncharacteristically been led to depart significantly from the court’s limited role when deciding constitutional challenges.” One doubts that this tendency is truly “uncharacteristic,” given that it is a hallmark of contemporary jurisprudence.
The majority points out that one of the dissents “is replete with citation to dissenting and concurring opinions,” since there is little in the way of case law to support rewriting the state’s marriage laws. “Instead,” the majority notes, “(the dissent) decides for itself what the public policy of this state should be.” Another dissent argues that the court should impose gay marriage, because eventually it will be accepted. The majority patiently explains democratic procedure: “While same-sex marriage may be the law at a future time, it will be because the people declare it to be, not because five members of this court have dictated it.”
The Washington decision, as well as the other important recent one in New York, rejects the argument that opposition to gay marriage is based only on rank prejudice. It says the Washington legislature was “entitled to believe” that preserving the current definition of marriage encourages a family structure that is best for children. Well, thank you very much! It is a symptom of our era of judicial fiat that it plays as some sort of far-reaching concession when a court says lawmakers are entitled to believe something that has been a bedrock belief throughout recorded human history.
Supporters of gay marriage want the courts to declare their opponents irrational not just because it is a shortcut to victory, but because they really believe it. This is their deeper anti-democratic premise. Democratic action is based on persuasion. But if you believe that most of the country is made up of irrational bigots, you have no hope to persuade them by argument and have to resort to the coercion of judicial overlords instead. When the would-be overlords refuse and say your opponents are rational, but perhaps misguided, you sputter with rage.
The push for an amendment to the U.S. Constitution banning gay marriage was born in reaction to the Massachusetts supreme court imposing gay marriage on that state a few years ago. The new decisions might reduce the urgency of the amendment’s supporters. That would be a mistake. Surely one of the reasons for the newfound humility of finger-in-the-wind judges around the country is their knowledge that more overreaching will create a strong political reaction, giving the constitutional amendment momentum. Judges are in check at the moment. It’s up to politicians and the public to try to keep them there.
— Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.
© 2006 by King Features Syndicate