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LUCAS: Homosexual ‘marriage’ judicial activism

Democratic process should govern cases

- - Thursday, December 20, 2012

The news that the Supreme Court will hear appeals of lower court decisions overturning the Defense of Marriage Act and California's referendum banning homosexual "marriage" has inspired cautious optimism among the practice's advocates. As one advocate told the New York Times, "We've made enormous progress and built irrefutable momentum, winning the freedom to marry in state after state and winning over a solid majority of support in this country." Another declared, "There is no doubt that the wind is at our backs." The constitutional implications of these cases cannot be overstated. How can we call our system of government democratic when five unelected, life-tenured and unaccountable judges can irreversibly change the meaning of our Constitution?

Confronted with an earlier Supreme Court that thought to solve another profoundly divisive national issue by judicial decree, Abraham Lincoln warned that if the Supreme Court was allowed to profoundly alter constitutional meaning, "the people will have ceased to be their own rulers, having resigned their government, into the hands of that eminent tribunal."

As homosexual "marriage" advocates noted, their cause is making steady advances both politically and in popular opinion. Why abandon democratic change when they are winning the democratic argument? To resort to judicial dictate is to renounce government "of the people, by the people, and for the people."

It is often pointed out that racists used this argument against the Supreme Court's critical civil rights decisions in the 1950s and 1960s. However, there is a fundamental jurisprudential difference between those cases and the homosexual "marriage" cases now before the court. In the 1860s when the 14th Amendment was enacted, there was controversy about its exact meaning (hence its atrociously vague wording). Yet everyone knew that it was about the rights of black Americans. As Judge Michael McConnell has shown, the civil rights decisions are easily justifiable on originalist grounds. If the worthies of the 1860s had been told the 14th Amendment would be interpreted as allowing two men (or two women) to "marry," the amendment would not have received a single vote in Congress or any state legislature. Extending the 14th Amendment to homosexual "marriage" is a fundamental distortion of its original purpose.

Yet, surely we cannot be bound by the benighted views of men who lived more than a century ago. Shouldn't our Constitution be able to change with the times? The Framers recognized that there would be a need for constitutional change. Their solution was not to allow de facto alteration by a few judges, however. Instead, their solution was the participatory political process of amendment -- in other words, rule by the people, not the judiciary.

Many argue that amendment is too difficult. Indeed, the U.S. Constitution is the most difficult to amend in the world, as vividly illustrated in the recent movie "Lincoln" about the struggle to initiate the 13th Amendment abolishing slavery. As Lincoln and the Reconstruction Republicans showed, however, amendment is possible. If amendment is, in fact, too difficult, should not the solution be some modest reforms to the amendment process to open it to greater participation and possibility -- not amendment by judicial fiat? Slightly reducing the numerical requirements, and more importantly, enabling the initiation of amendments at the state level, would empower constitutional change by the popular voice as the Framers intended and end the demand for change by a tiny judicial cadre who were never intended to wield such power.

When they thought that the Supreme Court might overturn the Affordable Care Act, liberals railed against judicial activism. They still rage against the Supreme Court's 5-4 Citizens United decision. Of course, conservatives have long denounced judicial usurpation of powers that properly belong in the legislative domain. A court should not act as a superlegislature. Can there be common ground to rein in judicial overreach, and reinvigorate constitutional change by popular action? A first step would be for the court itself to leave the contentious social issue of homosexual "marriage" to the democratic process rather than cutting short the people's deliberations by decreeing that they must resign their voices to the dictates of that high tribunal.

James W. Lucas is a lawyer in New York City and author of "Are We The People? Using Amendment to Take Back Our Constitution from Big Government, Big Business, and the Supreme Court" (2012).