Judicial activism is back, and with a vengeance. Unelected judges with personal agendas felt the rush of power that came from making public policy with the school-prayer cases in the 1960s and school busing in the 1970s. Today many judges are rewriting the definition of marriage that has served civilization well for thousands of years.
Legislators of principle and common sense must remind judges that theirs is the duty to interpret law, not to rewrite it. One judge in particular need of correction is U.S. District Court Judge John E. Jones III of Harrisburg, who decided last week that he didn’t like the Pennsylvania statute which says: “It is hereby declared to be the strong and long-standing public policy of this Commonwealth that marriage shall be between one man and one woman.” He cast it aside.
Unless reversed on appeal, the decision will require the state to recognize homosexual marriages. Gov. Tom Corbett, a Republican, decided he wouldn’t do anything about the ruling. Though he says he opposes same-sex marriage, the governor further said his lawyers told him it was “extremely unlikely” the state would win on appeal.
Since the U.S. Supreme Court canceled the Defense of Marriage Act and California’s Proposition 8, federal judges have taken the question, and the answers of majorities of voters, away from the people. There’s surely no shortage of laws that deserve to be repealed, but whether to repeal the many bans of same-sex marriage is a decision for the people — by referendum or through their elected representatives, not by a single federal judge acting as a superlegislator, imposing his view that the long-standing meaning of marriage should be assigned to “the ash heap of history.”
In Michigan, state Attorney General Bill Schuette is weighing whether to appeal a federal judge’s ruling May 23 that enabled Rep. John Conyers Jr. to appear on the Aug. 5 Democratic primary ballot despite his failure to submit the 1,000 valid signatures required by law. A primary rival succeeded in having hundreds of signatures invalidated because the Conyers campaign violated the law requiring such signatures to be collected only by registered voters.
U.S. District Court Judge Matthew Leitman, an appointee of President Obama, said his decision was based on what he regarded as the “substantial likelihood of success” of Mr. Conyers’ challenge to the constitutionality of the law’s requirement that signature collectors be registered voters.
No novice at understanding the consequences of flouting or manipulating the law, Mr. Conyers has been in Congress since 1965, and his failure to comply with the law was his own fault. He should have known better and deserves no mulligan by a sympathetic federal judge.
Alexander Hamilton in Federalist No. 78 envisioned the judiciary as “the least dangerous” branch of the federal government. It has since become the most dangerous. Mr. Schuette and Mr. Corbett must appeal these federal rulings to restore the balance between the branches of government, and between the federal government and the states. Fighting back against the dangers of justice by whim and resisting judicial activism is the logical and safe course if we are to remain the “nation of laws” that we say we are.