Same-Sex Marriage Threatens Judicial Imperialism

 

IBDEditorials.com

Liberty: Settling questions it deems too big for the voters is not the Supreme Court's job. On delicate issues like race and family, the justices — liberal and conservative alike — are obliged to trust the people.

The mad rush to transform marriage, which has inevitably landed into the laps of the nation's nine highest-ranking arbiters, must be viewed in the context of cultural history.

In the last half-century American society has undergone nothing less than a social revolution.

The left would have us believe this upheaval bubbled up from the masses, but most of the radical change was handed down from on high by elites — in Hollywood, the press, academe, and, not least, the legal profession.

To take one area, censorship of word and image, the hard-charging attorney who in the '50s and '60s litigated smut into art, Charles Rembar, 45 years ago admitted that First Amendment protection of sexually explicit materials was something very new.

"In 1956 the concept did not exist at all," Rembar pointed out in his 1968 book "The End of Obscenity." But "in 1966 it was full grown and dominant, and turned a hard hand against censorship," he reported.

It was done by the courts, not by elected lawmakers. Just as there was no majority in America in the '60s demanding constitutional protection for pornography, and no majority in the '70s pining for abortion-on-demand, there was also no majority in 2003 demanding the right to marry for homosexuals. In that year, Massachusetts' highest court declared there was no rationale "for denying marriage to same-sex couples."

If, as some polls suggest, a majority now favors radically redefining humankind's most ancient social institution, it's the result of entertainment and news media saturation in favor of that position, at least partly spurred by the Massachusetts judicial diktat.

The Supreme Court is now scrutinizing both California's Proposition 8, enshrining traditional marriage in the state constitution, which passed with a healthy majority in 2008, and the Defense of Marriage Act, enacted with overwhelming majorities of 85—14 in the U.S. Senate and 342—67 in the House of Representatives in 1996, and signed into law by President Bill Clinton.

The U.S. Constitution says as much about marriage as it does about abortion: nothing. If Americans want to change that, there is the amendment process. But, as in Roe v. Wade, the Supremes seem to believe they have the power to knock down democratically passed laws.

"There are some 40,000 children in California ... with same-sex parents," said right-leaning swing Justice Anthony Kennedy last week, "and they want their parents to have full recognition and full status."

But consider the slippery slope of the logic here.

If same-sex couples are entitled to marriage rights, how about three or four people? What about polygamists? Or incestuous couples?

The wisdom of further revolutionary transformation of society and family is dubious at best.

But when a free people do embark on such a path, the change should be by them doing it themselves, after long, reasoned debate. Not by judicial elites.