- The Washington Times - Sunday, May 16, 2004

In the debate over traditional marriage, the cultural dominoes are falling in the wrong direction. Activist judges, who specialize in taking issues away from the people and deciding those issues instead, intend to make traditional marriage a thing of the past. Their decisions, like the one that will allow Massachusetts clerks to begin issuing marriage licenses to same-sex couples this week, and the aggressive political and legal strategy driving them, make clear that protecting traditional marriage will require amending the Constitution.

America’s founders believed, as James Madison put it, that the legislative branch “necessarily predominates” in a representative democracy. We all learned in civics class that the legislative branch makes the law, which means the judicial branch doesn’t. Most state constitutions go beyond separating the branches, and two-thirds explicitly prohibit judges from legislating. With only the power to interpret the law, the judiciary is supposed to be, in AlexanderHamilton’s words, the “least dangerous” branch.

Timeshavechanged. Judges have become the most dangerous branch by following former Chief Justice Charles Evans Hughes’ view that the law is “whatever the judges say it is.” Judges cannot change the literal words of the Constitution or a statute, so they make law by changing the meaning of those words. The obvious danger is that if the law means whatever judges say it means, judges control the law, run the country and define the culture.

Since before the founding of the republic, legislatures enshrined the traditional view that marriage is a union of a man and a woman. Only in the last decade have judges attempted to substitute their own views, effectively amending state constitutions by judicial fiat and imposing new marriage policies. Neither the people nor their legislatures chose any such thing.

In addition to judges acting like legislatures, some rogue public officials are acting like judges. Although California law defines marriage as between a man and a woman, for example, San Francisco Mayor Gavin Newsom simply declared it unconstitutional, and same-sex couples from at least 46 states have obtained a marriage license there. Similarly, same-sex residents of more than 30 states have obtained marriage licenses in Multnomah County, Ore. Litigation is inevitable as they challenge their home states to recognize these same-sex unions.

This crisis requires a constitutional solution for at least three reasons. First, amending the Constitution is the only way of reining in the activist judges who will otherwise undermine traditional marriage. Neither judicial self-restraint nor the separation of judicial from legislative power is enough. Nor, it appears, are explicit bans on legislation by judges in state charters. The Massachusetts Supreme Judicial Court’s decision that same-sex couples may wed, which goes into effect this week, is a legislative act openly defying the Massachusetts Constitution’s edict that judges “shall never exercise the legislative” power.

Second, the 1996 Defense of Marriage Act (DOMA) will no longer effectively protect traditional marriage. While the Constitution requires that states give each other’s judicial proceedings “full faith and credit,” it also lets Congress make exceptions. Supported by 79 percent of House members, 85 percent of senators and signed by Bill Clinton, DOMA guarantees that one state need not recognize another’s non-traditional union. Even so, federal and state court decisions since DOMA have made legal analysts, enthusiastically or grudgingly, concur that DOMA itself likely will not survive a court challenge before activist judges.

Third, amending the Constitution of the United States is the only way for the people of the United States to take this issue back. “We the people” established the Constitution, and only we can rightfully amend it by the single process outlined in the charter, a process that excludes the judicial branch. No amendment on any subject becomes part of the Constitution unless supported by two-thirds of Congress and three-fourths of the states. Amendments by judges, by contrast, defy the people and lack their consent.

The first right of the people is to govern themselves. Activist judges take away that right, sapping democracy’s legitimacy and vitality. When courts deny the people the right to decide cultural issues for themselves, they undermine both the freedom and the opportunity to form consensus provided by self-government. Americans on both sides of the marriage debate deserve to have their voice heard and the potential to make it effective. Such civic participation in elections, through legislatures, or in amending the Constitution, is an antidote to judicial activism. Defending the people’s right to govern themselves generally and protecting traditional marriage specifically require responding to this judicial activism by amending the U.S. Constitution.

Sen. Orrin Hatch is a Utah Republican and chairman of the Senate Judiciary Committee. Sen. Jim Talent is a Missouri Republican.

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