Courts vs The People

With the controversy over Proposition 8 in California, defining marriage as a union of man and woman, we have starkly seen a battle that has been playing out for many years. In the spirit of full disclosure I would have voted with reservation for Proposition 8, but whatever your opinion is concerning same sex marriage, the role of the courts in our democracy should be of concern to you. The courts over the past century, most prominently by the Warren Supreme Court (1953-1969), have expanded their role from defending constitutional rights to the creation of rights. The battle over same sex marriage in California encapsulates this issue nicely.

Lets look at what happened in California. First in the year 2000 California voters passed a state initiative defining marriage to exist between a man and woman. One must ask, why did Californians feel it necessary to put forth an initiative in 2000? Clearly, there was some measure of concern that existing California law was insufficient to contain marriage in its traditional form, and in response citizens passed the initiative with 61% of the vote. It seems that their fears in 2000 were well founded, in May of 2008 the California Supreme Court struck down the 2000 initiative as unconstitutional. Reacting to the Supreme Court decision, Proposition 8 (a constitutional amendment) was placed on the ballot by traditional marriage activists, and in no small measure was voted for in repudiation of the California Supreme Court’s decision.

Why should we be concerned with the actions of California’s Supreme Court? If you don’t live in California you should be concerned in the sense that it is a symptom of a national problem. Traditionally, the role of the court was to defend the law of the land, and a Supreme Court’s role, whether federal or state, was to defend the supreme law of the land: the constitution of the state or nation respectively. Today many justices on our national and state Supreme Courts no longer function under this guideline. They create rights and expand freedom. Why should this worry you? More freedom and rights is a good thing right? Generally speaking yes, but that assumption fails to recognize the source of our freedoms and rights. Rights dispensed by a group can be revoked by that same group. On the other hand, rights inherent to us cannot be revoked. This is the essence of rights. Rights are divinely given, or for the irreligious, inherent in our existence. They are not granted by government.

Our founders recognized this and enshrine these in the Bill of Rights. Thus, placed in the supreme law of the land, they could not be infringed upon by a powerful central authority. The protector of these rights in our system is the Supreme Court who’s duty it is to defend the Constitution. Yet, over time this role has be abdicated by many justices. Impatient for social change and unwilling to abide the pace of democracy they impose their will by expanding the meaning of the constitution in a manner pleasing to their sensibilities. Judges have a role in our democracy as a necessary check on legislative or executive excess. One of their roles is indeed to protect minority constitutional rights, and yes they have failed in the past (for example: separate but equal). Yet, such failures are not remedied by committing the same wrong act of subjective interpretation for a more preferred cause. We must preserve the fundamental rights of all Americans and let the constitutionally inherent process of amendment create and expand the rights of this nations citizens.

All Americans have an interest in preserving the integrity of the Constitution. We must support more justices like Carol A. Corrigan, who place the law above their wishes. As she said in her dissenting opinion to overturn the 2000 initiative: “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.”

Amen.