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Jewish World Review Dec. 27, 1999 /18 Teves, 5760

Don Feder

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Vermont court invalidates democracy -- FREEDOM HOUSE, THE NEW YORK-BASED HUMAN RIGHTS GROUP, has released a report on democracy's progress in the 20th century. In 1900, only five percent of the world's population could elect their national leader. Today, that figure is 58 percent. But hold the confetti. In America, the world's greatest experiment in self-government, democracy is fast becoming a dead letter.

In total disregard of the deeply held beliefs of most Americans, the courts have taken it upon themselves to decide the most momentous issues of the day.

Last week, the Vermont Supreme Court issued its long-awaited ruling on gay marriage. Using the common-benefits clause of the state constitution as the pretext for its naked power grab, the justices held the state must allow either marriage or the advantages thereof to same-sex couples.

The court has put a loaded gun to legislators' heads and said: "You can choose barrel A (gay marriage) or barrel B (domestic partners' benefits). And, if you don't act, we'll choose for you."

You have to admire gay-rights activists. They picked the perfect venue for a judicial coup. Since Vermont has no initiative or referendum, there's no way to override a judicial diktat by popular vote.

Amending the state's constitution is an arduous process requiring a two-thirds vote of two elected legislatures as well as ballot approval. By basing their decision on the state constitution, Vermont's justices have foreclosed an appeal to the U.S. Supreme Court.

Gay marriage is one of those issues where the elite joyfully thumbs its nose at a super-majority of the American people. Whenever they're given an opportunity, the public loudly and emphatically says no to this assault on an institution which is the bedrock of civilization.

When Hawaii's Supreme Court tried an identical maneuver in 1996, voters amended their constitution to define marriage as the union of a man and a woman, by a 69 percent vote. Alaska did the same by a similar margin.

Washington state, Colorado and Maine have each either rejected a statewide gay-rights initiative, repealed a legislative enactment or voted to pre-empt such a statute.

In 1996, Congress passed the Defense of Marriage Act by the lopsided margin usually reserved for resolutions recommending motherhood and the flag. Since then, 30 states have followed its example.

None of this impresses Vermont's judicial autocrats. In effect, they are saying that the people's elected representatives may decide such weighty matters as solid waste disposal, but when it comes to something crucial to the survival of the family (maintaining its unique status), they -- and they alone -- will cast the decisive vote.

It's almost amusing, the lengths to which judges will go to justify mandating their social values.

Vermont's constitution (enacted in 1777) observes, "The government is or ought to be instituted for the common benefit, protection and security of the people."

Aha, says the court, "common benefit" means if a man and a woman can marry, then two men or two women are entitled either to the same status or all of the advantages of matrimony -- notwithstanding that, unlike fathers and mothers, they are not doing society's essential work of rearing the next generation.

Of course, the court's reasoning also validates this option for incestuous couples, polygamous couples and so on. If the state isn't allowed to discriminate among the unions of adult citizens, then there is no basis for denying either a marriage license or marital benefits to any other grouping.

Bob Knight of the Family Research Council fears that even if the Vermont legislature takes the less drastic step, this will eventually lead to gay marriage: "Down the road, some judge will rule, 'We've already granted the point that these couples deserve equal benefits, so why shouldn't we just give them equal status."'

To avert this, what's needed is an extra-judicial solution -- an amendment to the U.S. Constitution defining marriage as it has been understood for the past 3,000 years and precluding judicial usurpations at the state or federal level.

I know full well the difficulty of that course. But what's the alternative, and what do we have to lose?

In the meantime, each of our polling places should have a sign that reads: "Democracy -- valid, except where prohibited by judicial decree."

JWR contributing columnist Don Feder's latest book is Who's Afraid of the Religious Right. Comment on his column by clicking here.

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©1999, Creators Syndicate