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

Cal Thomas

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Raw Judicial Power II --
WHEN ROE VS. WADE was decided by a 7-2 vote in 1973, U.S. Supreme Court Justice Byron White declared the unconstitutional assault on the unborn an exercise in "raw judicial power.''

That corrupt judicial seed found its way into last week's ruling by the Vermont Supreme Court that homosexuals have a right to the same presumptions and benefits as heterosexual married couples. As Robert Bork noted in the Wall Street Journal, neither the Vermont case nor several other recent state court cases prohibiting school vouchers and the restriction of New York City's pornography trade have "any support in the constitutions they invoke.'' The Vermont court, in violation of the separation of powers, has dictated to the people and their elected legislature a social, legal and moral policy.

As Bork noted, the Vermont court appeared to find legislation an inconvenience to its own vision. One Vermont justice lamented that the plaintiffs would be sent to an "uncertain fate in the political caldron of ... moral debate.'' To the court, the legislature is an inconvenience that must be ruled by fiat. Yet, that is how we used to make laws before the courts ascribed to themselves the right to bypass the people.

Without a moral vision and the enforcement of morals at some level, cultures and then nations soon unravel. This is one of history's lessons for those who do not wish to repeat it. The United States refused to admit Utah into the Union until the state repealed its polygamy law. Now, a state supreme court sees marriage as whatever the justices say it is.

Patrick Devlin, a former English judge, wrote a little book some years ago titled "The Enforcement of Morals'' (Oxford University Press, 1965). In it he argues that "the moral law of a society is made up from the ideas which members of that society have in common about the right way to live. The association of men and women in wedlock has from time immemorial been of such importance in every society that its regulation has always been a matter of morals.''

But what happens when courts, and not citizens, define the morals by which a society lives? Who sets the limits and by what standard? Divorce has already caused great damage to marriage and to the children of divorced parents. According to the Census Bureau, there were fewer than 200,000 divorced Americans in 1900. By 1998, that number had risen to 19.4 million. Do we wish to further undermine marriage by declaring homosexual "couples'' equal to married, heterosexual couples?

Again, Devlin is helpful: "Since the modern state concerns itself with promoting institutions that are beneficial to society, the legislator has to consider how the law can best be used to help marriage and to discourage alternatives.''

Homosexual coupling is not an alternative. Neither is it equal to heterosexual coupling, any more than polygamy is marriage's equal or alternative. In commenting on the Vermont ruling, the New York Times, which uncritically shills for all things gay, pointed with pride to Chief Justice Jeffrey Amestoy's opinion that homosexuals "seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting relationship.'' In fact, they seek quite a bit more. In publications, conventions and speeches, gay rights activists for at least three decades have sought to undefine the family. One gay newspaper (Quicksilver Times, Washington, D.C., Nov. 24-Dec.4, 1970) reported on a lesbian workshop in Philadelphia that demanded the "destruction of the Nuclear Family,'' calling it "a microcosm of the fascist state, where the women and children are owned by, and their fates determined by, the needs of men, in a man's world.''

The Democrat-controlled Vermont legislature will now be faced with the task of either creating "domestic partnerships'' or allowing homosexual couples to "marry.''Vermonters, who have long pioneered in other areas, ought to be extremely wary of the temptation to appear "progressive'' by gutting one of the primary supports of any nation. Instead, they should follow the example of the Hawaii legislature, which passed a constitutional amendment preserving marriage for heterosexuals in that equally Democratic and liberal state.

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