Posted by
ClearCommentary.com on Friday, May 16, 2008 2:51:26 PM
One of the most profound criticisms of the recent 4-3 California Supreme Court decision overturning Proposition 22--which states that marriage is between a man and a woman, and which passed with 61.4 percent of voters--is that it affirms that our judiciary hasn't advanced from its post-modern activist roots which gave us the baleful Roe v. Wade decision.
Unlike arguments by liberals, which give the art of nuance a bad name by suggesting that an evolving culture justifies judicial activism, the more damning product of this decision is that it's an abrogation of the will of the people. But it also opens the door to a nearly limitless potential for extrapolation of constitutional precepts based on "evolving" community standards.
For the jurisprudential analysis, spend some time reading Ed Whelan's work at the Ethics & Public Policy Center.
Justice Marvin Baxter, who wrote the dissenting opinion, succinctly summed up the key issue when he wrote that the court
...does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice.
Apropos of the issue of the judicial ambiguities that these decisions may spawn, Baxter also questioned whether a future "activist" court might look at this opinion and
...conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified.
Indeed, George Will once asked a hostile panel of colleagues to tell him by what principled and non-arbitrary argument could those supporting same-sex marriage deny the same right to polygamists and supporters of incest? His opponents were incensed and used the polemical equivalent of anti-aircraft fire to deflect his attack, but never provided a substantive response.
Beyond the irrefutable fact that judicial activism is tantamount to creating law, and an affront to our legislative branch of government, the defense of a constructivist approach to judicial decisions is that maintains a faithful--read, meaningful--connection to our Constitution, which is to say, the ideas upon which our Republic was founded.
That's important, because although our nation was founded on English Law, there are many crucial differences, and it's axiomatic to observe that America's tripartite system of governance, with its insistence upon the separation of powers, is unique in the world. That symmetry is both resilient and susceptible to erosion over time, and when an activist judiciary is left unchecked, as it has been for nearly fifty years, it begins to degrade the principles and underlying values upon which they're founded.
Although liberals nationwide are celebrating, Senator Obama's response was more cryptic, blithely noting that he “respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.” We concur that states should be the arbiters, but in the legislature--or through constitutional amendments or referenda--not in the judiciary, where a few unaccountable, unelected judges can render decisions that negate the will of the people.