Jewish World Review Nov. 24, 2003 / 29 Mar-Cheshvan, 5764
John Leo
Avoiding democracy
http://www.NewsAndOpinion.com |
Some admire the gay-marriage ruling in
Massachusetts. Some don't. But surely the
heart of the story is the stupefying
arrogance of the state's Supreme Judicial
Court. If you are going to stretch a state's
constitution beyond all previous
understanding and impose what many
people believe is a fundamental redefinition
of marriage, you don't do it in a 4-to-3 vote.
There is no consensus among Massachusetts voters for such dramatic
change. On a liberal court, thought to be favorable to gay issues, there was
not even a consensus among the seven judges who pondered the issue for
more than a year. The three dissenters expressed some sympathy for gay
arguments but also some serious legal doubts. Justice Martha Sosman
wrote that as a matter of constitutional jurisprudence, "the case stands as an
aberration. To reach the result it does, the court has tortured the rational
basis test beyond recognition." No matter. Chief Justice Margaret Marshall
rammed the ruling through anyway.
In the manner of
modern judicial elites,
the four judges rode
roughshod over the
legislature and the
voters. They shut down
the compromise option
of allowing gay civil
unions. They
constructed the ruling
so the legislature could
address the issue in
only one way by
ratifying what the court
demanded. "Do it our
way, or we'll do it
ourselves" was the
clear message. No, the judges wouldn't want to leave open the possibility
that democracy might break out in the legislature. The court also seemed to
close the door on being overruled by a constitutional amendment. It ordered
the legislature to act in accordance with its wishes in 180 days, and by law
the constitution can't be amended in less than three years. By then
thousands of gays will have married. The four went further than any other
state court has gone. Courts in Hawaii and Alaska approved gay marriages
but made no attempt to hamstring legislators. In both states, legislatures
passed constitutional amendments limiting marriage to heterosexual
couples.
How could the four have missed the obvious lesson of Roe v. Wade? The
U.S. Supreme Court's abortion decision, imposed out of the blue with flimsy
constitutional cover, short-circuited debate that was still in its early stages. It
took the issue out of democratic politics and sparked 30 years of social
turmoil. It gave everything to one side of the debate, nothing to the other, and
made a European-style compromise impossible by its arrogant and
constituionally dubious "fundamental right" ruling. It assured rage by making
its decision democracy-proof as antiabortion forces quickly learned, the
ruling could not really be modified by democratic decision making. Well, here
we go again. Although a serious debate on gay marriage has not yet taken
place, the short-circuiting process is already far advanced, complete with
attempts to bar the civil-union compromise and to make a constitutional
amendment almost impossible. Once again, no consensus and no broad
debate. And just as with the abortion decision, a court is summoning up
enormous opposition by foreclosing normal democratic procedures.
Glamour factor. Why do judges behave this way? One reason is
"landmarkism." The loudest applause from the legal academy tends to come
after a far-reaching allegedly progressive decision unsupported by public
opinion and with no real basis in the U.S. Constitution or case law. No judge
gets to be admired by the legal and media elites by simply following law and
precedents. No glamour there. You have to make something up. Brown v.
Board of Education in 1954 was a good and necessary decision, but it
created the monster of "landmarkism." It also deeply affected left-right
politics. As the left gradually despaired of attracting a majority of voters to its
programs, it opted for a strategy of going around the voters by relying on
judges to impose liberal outcomes. This liberal end-run around politics is
what the current battle over judges is all about.
Then, too, the mind-set of media and judicial
elites is dominated by a very simplistic view
of the gay marriage issue that it pits bigotry
against valiant attempts to include an
oppressed group. That pared-down view of
the issue is the reason why very serious
concerns are not on the elite radar screens.
The Massachusetts decision depicted
marriage as an intimacy choice for
individuals. Procreation and child rearing, central to a prevailing view of
marriage for most of western history, pretty much disappeared in the
decision. Chief Justice Marshall even played this point for laughs in oral
arguments, asking whether a married couple should be forced to divorce if
they are childless after 10 years. Chuckles ensued. This attitude almost
guarantees that gay marriage, unlike civil unions or benefits for committed
gays, will now produce an enormous and divisive national uproar. Right in the
middle of a presidential campaign.
Good work, Massachusetts.
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