- The Washington Times - Wednesday, July 12, 2006

What? What? What? New York’s highest court wouldn’t force “marriage” rights for homosexuals on the state’s supposedly sovereign people? Wouldn’t say to the state, and the world, this is just how things are, buster?

The mind boggles — gratefully. This isn’t how things usually go when this aggrieved interest or that one claims a new civil privilege. We need to reckon with, and assimilate, the court’s extraordinary (by modern standards) and hugely refreshing reasoning.

Here’s what happened. Forty-four same-sex couples in New York, seeking affirmation of the kind accorded Massachusetts homosexuals by their state’s highest court, claimed under the New York constitution a right to equality in marriage arrangements. In other words, if heterosexuals could marry — and whoever said they could not? —why not gays as well? At length, the matter reached New York’s highest tribunal, the Court of Appeals. On July 6, the court upheld, 4-2, the constitutionality of exclusive marriage rights for heterosexuals.

Judge Robert S. Smith explained: “[T] here are rational grounds on which the Legislature could choose to restrict marriage to couples of the opposite sex. Plaintiffs have not persuaded us that the long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. Until a few years ago, it was an accepted truth for almost everyone whoever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted.”

Far be it from us judges — Judge Smith in effect was saying — to tell the people of New York: You backward jerks just think you’ve got the right to define rights. We’ve got that right — we the judges.

That is pretty much what the two dissenters wanted to announce. As Chief Judge Judith Kaye wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.” Let us hold up to the light this wonderful piece of reasoning. You don’t find much more pellucid exposition by the liberal elite of said elite’s claimed right to rewrite social principles on the basis of supposedly superior wisdom.

Phooey on tradition. Whatever people in past times might have said and thought, obedient to whatever norms, we, the judges, know better. What’s more, we’re telling you.

Phooey on the people’s sovereign rights. Who are mere lawmakers against the great minds observing from Judicial Olympus the hurly-burly below, sorting things out on the basis of special insight and concern?

We, the judges, run things, if you please. It’s pretty much the message Americans have been receiving from their courts for four decades: school prayer, abortion, homosexual rights, etc. Judges fancy themselves Platonic guardians, defining and, where they can get away with it, shaping the Higher Interest. As in Massachusetts, whose highest court decided three years back that all that old heterosexual marriage stuff being outrageously outdated, homosexuals henceforth were to stand on the same matrimonial footing as straights.

One doesn’t have to — although I myself would — argue back at the court on purely normative grounds. Alongside this manner of reply rests the obligation to call the hand of any court seeking to substitute its own norms and judgments for those of elected lawmakers — norms that, whatever their celestial honors might imagine to the contrary, reflect our way of doing business together in a diverse democracy.

If you don’t like our written statutes, change ‘em — by democratic consensus. Argue, debate, vote. It’s the American way, or anyhow, it was until judges undertook to wrestle the steering wheel away from those charged nominally with speaking for the people instead of the elites.

One shouldn’t imagine that New York (of all places) has dealt judicial busybodyism a decisive blow. What a joy anyway to watch. It’s been a long time around here between hard judicial victories for common sense.

William Murchison is a nationally syndicated columnist.

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