Jewish World Review March 22, 2004 / 29 Adar, 5764

Jack Kelly

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This could become campaign issue No. 1 | It is only March, and no mortal knows for sure what, come November, voters will think are the issues that should decide the presidential election.

Perhaps it will be national security. But current polls indicate that it is fading as a concern. Perhaps it will be the economy. But if job growth picks up, Democrats might not be so eager to talk about it come fall. My candidate for sleeper issue is the war that liberal elites are waging — primarily through the courts — against religion generally, and against the Christian religion in particular. The controversy over gay marriage — sparked by the Supreme Judicial Court of Massachusetts and fueled by scofflaw mayors in San Francisco and elsewhere — has been getting most of the ink these days, but the assault is far broader than that.

A federal judge in San Diego has ruled that the Boy Scouts may not use public property because they mention God in their creed and do not permit homosexuals to become scoutmasters. The California Supreme Court has ruled that Catholic Charities must include condoms in the medical coverage for their employees, even though this, in the eyes of the church, is sinful. Voluntary prayer in public schools was outlawed long ago. Today, teachers are being fired and students are being suspended for reading Bibles.

The separation of church and state — a phrase found nowhere in the Constitution — is now being used by activist judges to drive religion out of the public square.

This must have the Founding Fathers spinning in their graves. "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports," said George Washington. "Our Constitution was designed only for the government of a moral and religious people," said John Adams. "It is wholly inadequate for the government of any other."

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Washington and Adams were among those who wrote the Constitution, and, presumably, knew more about what they meant than do the loons on the 9th U.S. Circuit Court of Appeals. But having declared the Constitution a "living document," activist judges have proceeded to disembowel it.

The Founders knew the Constitution would have to change with time, which is why they provided not one but two means of amending it. But the Founders believed that changes to our basic law should be made only after careful deliberation, only with the support of a large majority of Americans, and only by the people's elected representatives.

Liberals have found it easier to amend the Constitution by judicial decree. But if the Constitution is only what the judges say it is, it isn't worth the parchment it's printed on.

Though a man of deep faith, President Bush is a reluctant culture warrior. But just as the events of Sept. 11 forced him to be a wartime president, activist judges are forcing him into a "war" of a different kind.

Bush has endorsed a proposed amendment that would codify the definition of marriage in which all the Founders believed. But whereas polls indicate that nearly two-thirds of Americans oppose gay marriage, nearly as many oppose amending the Constitution to prohibit it. I'm in both majorities.

Sen. Orrin Hatch, R-Utah, has proposed alternative language, which would say simply: "Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

Hatch's approach is correct. If Christians are to be banned from public life, and gay marriages made the law of the land, these changes should be voted by legislatures, not imposed by judges.

But the Hatch amendment, by itself, is insufficient. One should not have to amend the Constitution to preserve its meaning. One should have to amend the Constitution to change its meaning. There must also be a measure to curb a runaway federal judiciary.

If Bush were to embrace both the Hatch approach and an amendment to curb judicial excess, he would be a defender not only of traditional marriage but also of the Constitution and of democracy, and would be on the popular side of what could turn out to be the most important issue this fall.

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JWR contributor Jack Kelly, a former Marine and Green Beret, was a deputy assistant secretary of the Air Force in the Reagan administration. Comment by clicking here.

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