March 21, 2004

Our black-robed rulers

By: David Freddoso

Sometimes irony has a way of jumping off the page and sticking red-hot pokers into your eyeballs. Take, for example, the op-ed that appeared in The New York Times on January 26, titled, “Attacking Democracy from the Bench.”

“It took just 10 days from the passage of Afghanistan’s new Constitution for the country’s Supreme Court to violate the word and spirit of that hopeful document. Without any case before the court, and based on no existing law, the court declared on Jan. 14 that a performance by the Afghan pop singer Salma on Kabul television was un-Islamic and therefore illegal. We are opposed to women singing and dancing as a whole and it has to be stopped,’ said the deputy chief justice, Fazl Ahmad Manawi.”

The author does not acknowledge the parallel–and perhaps the liberal Times editors do not notice it–but the Afghan high court did nothing that American courts do not already do on a regular basis.

American courts do not use sharia as grounds for their autocratic pronouncements, but they have their own uniquely Western equivalents: fuzzy moral sensibilities, “international law,” the inviolable principle of tolerance, and even public polling. With these inane justifications and others, they are stealing Americans’ birthright of self-rule.

Massachusetts fraud

The much discussed gay marriage decision by the Massachusetts Supreme Judicial Court, finalized early last month, is only the most recent judicial fraud threatening the Republic. The Massachusetts Constitution states, “All causes of marriage, divorce, and alimony… shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” In other words, marriage policy and law are reserved for the elected branches of government. There can be no court ultimatums to wed two men. Ignoring this entirely, the court decided that there is no “rational basis” for the state not to wed two men.

In fact, there is a perfectly “rational basis,” the one society has always embraced. Stable marriages, grounded in nature and in traditions that go back well beyond the time of Christ, benefit society in ways that other relationships never will. Even the ancient pre-Christian societies that tolerated homosexuality recognized that on the whole healthy marriages do far more to promote good citizenship, discourage anti-social behavior in young men and in children, keep society’s most vulnerable out of poverty and give people generational roots in their communities. They valued traditional marriage between one man and one woman (and in at least one case even mandated them) for that reason, even though they tolerated and engaged in all sorts of deviant behavior.

Marriage has never been a cure-all, but when it works it benefits everyone–even the unmarried. And while the state cannot make traditional marriages happen, or make them work, it can show its approval in small ways by giving it a unique status and making it slightly more attractive.

By seeking to claim any two- (or why not three-?) person relationship as a “marriage,” the homosexual movement is, in fact, simply trying to eliminate this vital institution as a meaningful part of our law and society. It has nothing to do with two men getting married, and everything to do with no one getting married. If marriage becomes nothing special in the eyes of the state–an ideal unfortunately shared by many libertarians–it will be a great loss, with only negative consequences for society.

Oligarchs on the bench

Unfortunately, the courts have not just disagreed with the rationale that forms a major part of our legal tradition–they have made all arguments on the subject totally irrelevant. Homosexual marriage, like abortion, will no longer be a matter of political debate, but the purview of an all-powerful judiciary with an agenda that no legal or rational argument can stop.

We are now ruled not by elected officials, but by oligarchs in black robes. With the crash of a gavel, they can raise our taxes (as in Nevada last year), bar public discussion of God, eliminate long-standing and perfectly reasonable laws enacted by the people’s legislatures, and block new laws that offend them personally.

This problem can no longer be remedied through ordinary means. The courts have, as Justice Scalia pointed out in Lawrence v. Texas, taken sides in the culture war, advancing their analogue to Afghan sharia, instead of performing their constitutional function.

The only practical way to restore the balance is to resurrect our elected branches of government. Ideally, American judges who use international law or public polling as a rationale to override the people’s will would be impeached immediately for violating their oaths of office. This will not happen now, and it will never happen if conservatives, timid about the power of the black robe, continue to neglect their duty and watch our constitution become as worthless as that of Afghanistan. But it will start happening in the future if enough elected officials start showing such judges’ decisions the amount of respect they deserve–zero.

This may appear a dangerous gamble, but it is much more dangerous to continue letting the courts undermine our rights. As long as five judges, spitting on hundreds of years of precedent and tradition, can arbitrarily declare a sacred right to sodomy, there is no rule of law. It is not possible to lose what is already lost.

The tide will turn only when legislators and governors stand up to the courts. If Massachusetts Gov. Mitt Romney (R) announces that he will shut down the state government before licensing a single homosexual marriage, he will be the first man to the battlefield. And he will not be the last, because courage is contagious.

Congress can refuse to fund enforcement of such rulings. It cannot, under our Constitution, reduce the pay of their highnesses the judges, but it doesn’t have to keep paying for their paper and pens.

Given enough encouragement, even President Bush could make us proud, and I believe much to his electoral advantage. Just as Franklin Roosevelt once threatened to pack the Supreme Court and thus saved his New Deal legislation, today’s leaders must sternly chasten the judiciary, because courts that show no respect for the law deserve none in return.

David Freddoso, Assistant Editor for Human Events, writes for Brainwash.

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