- The Washington Times - Saturday, February 28, 2004

It says something interesting about contemporary culture — or at least about the news media — that the media regard as controversial a film that faithfully depicts the Gospel accounts of the trial and crucifixion of Jesus Christ, but do not regard it as controversial when the mayor of San Francisco — in defiance of state law and the recently expressed will of more than 60 percent of California’s voters — issues marriage licenses to same-sex couples.

Traditional values in the United States are under relentless attack, and they are being attacked by undemocratic means.

The gay marriage controversy exploded when the Supreme Judicial Court of Massachusetts, by a 4-3 decision, ordered the Massachusetts legislature to rewrite the state’s marriage laws. The decision caused nationwide concern, because it is feared that under the “full faith and credit” provision in the Constitution, gay marriages performed in Massachusetts may have to be recognized by other states, despite their own laws to the contrary.

After Vermont permitted civil unions for gay couples, Congress passed the Defense of Marriage Act, which says that no state is compelled to recognize gay marriages authorized by another. But many fear judges determined to impose their own version of morality will simply declare that act unconstitutional.

In order to prevent that, President Bush has endorsed an amendment to the Constitution that would define marriage as a union between a man and a woman. His position is preferable to that of Democratic presidential contenders John Kerry and John Edwards — who say they are against gay marriage but won’t do anything to stop it — but is still, in my judgment, flawed.

The key flaw is that Mr. Bush’s amendment — like the failed prayer amendment of two decades ago — doesn’t address the core problem, which is that an unelected judiciary is running roughshod over the plain meaning of the Constitution, substituting its views on socio-political issues for those of the framers and the majority of the American people. In the unlikely event that the marriage amendment were successful, judicial overreach would be blocked in this one area. But the fundamental problem would persist.

A related flaw is that Mr. Bush proposes to put a public policy into the Constitution. All previous successful amendments have been structural. This is as it should be. Policies change over time, but the Constitution is supposed to be timeless.

The best solution is to appoint judges to the federal bench who respect the Constitution. But the extent to which judges have not indicates that an amendment is required to correct an oversight of the Founding Fathers. They failed to provide a mechanism for resolving disputes in constitutional interpretation among the three separate, but equal, branches of the federal government.

The trouble is that the combination of judicial review (a power not found in the Constitution, but asserted by Chief Justice John Marshall in Marbury vs. Madison) with lifetime tenure for judges has set the stage for judicial tyranny. This problem could be corrected by one of two structural reforms, or perhaps both.

First, amend the Constitution to end life tenure for federal judges. Judges would be appointed instead for, say, nine-year terms. Judges could serve for more than one term, but would have to be nominated again by the president and confirmed again by the Senate. This would provide accountability that now is lacking, and make judges less willing to embrace radical positions.

Second, it’s often been said that “the highest court in the land is the court of public opinion.” This isn’t true, but suppose it were. Suppose we amended the Constitution to provide that if the president (by proclamation) and the Congress (by joint resolution) disagree with a ruling of the Supreme Court, the matter will be put before the voters in the next general election, with a “yes” vote sustaining the ruling of the court and a “no” vote overturning it.

Because both the president and Congress would have to dispute a Supreme Court ruling for it to go to the people, this wouldn’t happen very often. But this procedure would guarantee that the most important questions in our society would be settled by democratic means, not by judicial fiat.

Jack Kelly, a syndicated columnist, is a former Marine and Green Beret and a former deputy assistant secretary of the Air Force in the Reagan administration. He is national security writer for the Pittsburgh (Pa.) Post-Gazette.

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