The culture war will never end if judges invalidate the choices of voters

Gay Marriage, Democracy, and the Courts
The culture war will never end if judges invalidate the choices of voters.
By ROBERT P. GEORGE in the Wall Street Journal.
 We are in the midst of a showdown over the legal definition of marriage. Though some state courts have interfered, the battle is mainly being fought in referenda around the country, where “same-sex marriage” has uniformly been rejected, and in legislatures, where some states have adopted it. It’s a raucous battle, but democracy is working.

Now the fight may head to the U.S. Supreme Court. Following California’s Proposition 8, which restored the historic definition of marriage in that state as the union of husband and wife, a federal lawsuit has been filed to invalidate traditional marriage laws.

It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.

Full article here. Many believe this issue is over, that gay marriage has won. Whatever the case may be,  there is something wrong about judicial usurpation: How is that "the rule of law"? It's the rule of agendas.

Comments

[James K]

Is any decision made in a voting booth by the general populace always sacrosanct?

If a Christian lived in an area of mostly atheists who thought that those who made the "lifestyle choice" of being a Christian could be discriminated against in housing and employment, to whom would the Christian turn? The judiciary? Or would they appeal to the voters and hope for the best?

[Truth Unites... and Divides]

James K.: "If a Christian lived in an area of mostly atheists who thought that those who made the "lifestyle choice" of being a Christian could be discriminated against in housing and employment, to whom would the Christian turn?"

To the wonderful triune God and His promises in Scripture.

[Michael]

To the wonderful triune God and His promises in Scripture. --Truth Unites... And Divides

Preach!

In all seriousness, James K., the Christian answers to a higher authority than the law of the land. Insofar as the law of the land does not violate the Law of God, the Christian follows it. But when the Lord calls us to worship, we go on worshiping no matter the the repercussions. We might appeal to secular authority, but in the case of representation, we appeal to the avenues available to us. If we believe that the courts' role is to interpret the law, rather than make it, we go to them for interpretation, not to strike down or uphold laws.

[GL]

Dr. George is a brilliant man who in the few words of the WSJ op/ed piece defended marriage as well as it can be defended. I would also recommend his article in the current issue of First Things, "What Marriage Is -- And What It Isn't". (Unfortunately, it is not available online without a subscription.)

[James K]

Michael writes: "If we believe that the courts' role is to interpret the law, rather than make it, we go to them for interpretation, not to strike down or uphold laws"

Is this country not founded on the notion that there are certain "inalienable rights" that cannot be removed by any law enacted by a popular vote? It is frequently mentioned that these rights are "God-given". Whether gay marriage is a right is a worthy debate, but I think it's errant to suggest that the base of our society is "majority rule".

[Michael]

Is this country not founded on the notion that there are certain "inalienable rights" that cannot be removed by any law enacted by a popular vote? It is frequently mentioned that these rights are "God-given". Whether gay marriage is a right is a worthy debate, but I think it's errant to suggest that the base of our society is "majority rule".

The highest law of the land is the Constitution, which was proposed, passed and ratified according to the will of the people. The "inalienable rights" are from the Declaration of Independence, which is not a domestic legal document. For what it's worth, I think you're conflating society and government. The base of our society clearly isn't majority rule, but the foundation of our government is majority rule with the necessary checks and balances to protect the few.

Well, it was until someone decided we should popularly elect senators and appoint judges that could make up law on the spot.

[c matt]

we go to them for interpretation, not to strike down or uphold laws

well, from the get go, we went to the courts to interpret the supreme law of the land, the Constitution. Part of interpreting that law may require striking down (or upholding) other laws depending upon their compatability with the Con.

The main issue wrt RvW was not that the court shouldn't be reviewing laws for compatability with the Con and thus strike or uphold, but that the law in question simply was not incompatible in any meaningful way. But they (or enough of them) didn't like the law so invented an incompatability in order to strike it down.

[Margaret]

As Walker Percy said in a similar vein about rights and elections in a letter to the NY Times,

"...But I do suggest that once the line is crossed, once the principle gains acceptance--juridically, medically, socially--innocent human life can be destroyed for whatever reason, for the most admirable socioeconomic, medical, or social reasons--then it does not take a prophet to predict what will happen next, or if not next, then sooner or later. At any rate, a warning is in order. Depending on the disposition of the majority and the opinion polls--now in favor of allowing women to get rid of unborn and unwanted babies--it is not difficult to imagine an electorate or a court ten years, fifty years from now, who would favor getting rid of useless old people, retarded children, anti-social blacks, illegal Hispanics, gypsies, Jews...

Why not?--if that is what is wanted by the majority, the polled opinion, the polity of the time."

http://petrasuperpetram.blogspot.com/2008/03/open-letter-to-ny-times.html