From the December, 2007 issue of Touchstone

Bench Pressed by William L. Saunders

Bench Pressed

Activist Courts Threaten Not Only Life But Democracy

by William L. Saunders

Christians sometimes think it wrong to be involved, as Christians, in public issues that appear to be “partisan.” They may sometimes be right to think so. However, one of the most contentious “partisan” issues in the public square, the appropriate role of the judiciary, is one that no responsible Christian can ignore.

The issue matters because what kind of judges are approved for the courts, state as well as federal, greatly affects not only the pro-life cause but even the future of democracy—and this is true for many other nations.

Infrequent Review

For Americans, liberty is premised upon a certain constitutional system. In this system, the role of the Congress is to decide policy issues, to make public policy on important matters.

The federal courts have a very limited role. Though no one gives it a thought today, even the principle of judicial review—the belief that federal courts may “strike down” laws they judge to be inconsistent with the Constitution—is not mentioned in the Constitution itself and was only “settled” (by the Court itself recognizing such a right) in one of the most famous decisions in American history, Marbury v. Madison (1803).

However, even assuming the judiciary has this power, it is meant to be exercised infrequently. In fact, it took the Supreme Court 54 years after Marbury to exercise this power for the second time.

The constitutional principle, in other words, is that the legislature makes the laws. It is in the legislature that the people, through their representatives, tussle and struggle over disputed issues. In doing so, democracy is, in the words of the political scientist, “consolidated.” People become “invested” in it—they see that it works, and they believe in it as a method of resolving disputes. This does not happen when courts make the laws.

I make these preliminary points because the question whether the judiciary (state and federal) is overstepping its proper constitutional boundaries and deciding matters that should be left to legislatures—usually referred to as “judicial activism” or “judicial usurpation of the legislative role”—is one that must be answered for the health of our democracy and is one on which Christians should speak. It is not “partisan politics” to insist that judges not overstep their role.

One very recent case illustrates the threat judicial activism poses for us all. The case deals with marriage, not abortion or euthanasia, but the principles and problems it illustrates are equally applicable to the life issues.

An Irrational Decision

On the last day of August, Judge Robert Hanson of a state court in Iowa ruled, in Varnum v. Brien, that an Iowa state law defining marriage as historically and traditionally understood violated the Iowa constitution and “irrationally” discriminated against homosexual couples who were seeking to marry.

Hanson relied in part on an opinion of Justice Sandra Day O’Connor of the US Supreme Court in Lawrence v. Texas (2003). But it made no legal sense to do so. First, O’Connor’s opinion was a concurrence. Lawrence had been decided on a different legal theory. Since a majority of the Supreme Court had backed another theory (of “due process”), her views about “equal protection” were legally irrelevant.

Second, and more significantly, Lawrence had nothing to do with homosexual “marriage.” It concerned whether a state law could selectively penalize homosexual conduct. The Texas law prohibited certain activities when homosexual people engaged in them, but not when other people did. The Court expressly noted that it was not deciding the question whether homosexuals had a constitutional right to marry , though it noted that they could try to convince their fellow citizens to grant them such a right.

Another fundamental flaw with Hanson’s opinion is his analogy to racial discrimination. Here is his reasoning: the Supreme Court in Loving v. Virginia (1967) showed that state laws prohibiting persons of different races from marrying were irrational, and violated the US Constitution; for the same reasons, Iowa’s law prohibiting persons from marrying someone of their own sex is also irrational, and violates Iowa’s constitution.

But the two situations are not comparable. The race of a person is, indeed, irrelevant to whether that person can satisfy the requirements to enter into a valid marriage, and hence laws prohibiting him from doing so are discriminatory because they are irrational.

The sex of a person is, however, relevant to whether he can satisfy the requirements to enter into a valid marriage. No couple of the same sex can possibly satisfy the rational requirement that one be a man and one be a woman. Hanson is saying that it is clearly without foundation in reason to define marriage as the union of one man and one woman.

Hanson said: “Only same-sex couples cannot marry.” This puts it nicely, and illustrates why his opinion is erroneous. Individuals, not couples or groups, have rights. No individual in Iowa is being denied the right to marry. Rather, individuals are being told (by the law) that there are limitations on whom they can marry, that is, on the human combinations that will be recognized as “marriage.”

There is nothing irrational about this. Four individuals cannot all marry one another; a brother cannot marry a sister; a child cannot marry anyone. All these restrictions on human choice are the consequence of the fact that “marriage,” like all words, has a meaning, the union of one man and one woman.

Traditional, natural marriage has been recognized even in international human rights documents as the fundamental unit—the essential building block—of society. Yet Hanson has the audacity to suggest that Iowans are utterly irrational in saying so in the law.

Defending Politics

In my opinion as a lawyer, this is one of the most poorly reasoned decisions I have seen, and I believe it will surely and swiftly be overturned by a higher Iowa court on appeal. However, we should note an essential point.

In Lawrence, the Supreme Court noted that homosexual people were free, as citizens, to try to convince their fellow citizens to grant them the right to marry, that is, to convince their fellows to change the definition of marriage by voting to change the law. In Iowa, the state legislature had passed laws prohibiting discrimination against homosexuals in various settings, but it had also passed a law defining “marriage” as historically and traditionally understood.

The political debate—the give and take in the legislature by the people through their elected representatives—was proceeding apace. However, Judge Hanson sought to take the matter out of the hands of the citizens of Iowa. The public debate envisioned by Lawrence was short-circuited.

It is important that, as responsible members of society, all citizens, including Christians, respond to such judicial activism, and keep such matters the subject of the democratic process. It is important to demand accountability of such judges. (Judge Hanson is up for re-election in 2010.)

But it is also important to remove issues fundamental to the stability and health of our society from the reach of activist judges. For instance, the citizens of Iowa could amend their state constitution—as 27 other states have already done—to protect marriage as the union of one man and one woman.

If, God forbid, the federal courts overturn these state constitutional amendments, it will certainly be time for Christians to engage in the difficult, and at times messy and unpleasant, but necessary task of amending the federal Constitution. This is our obligation, as Christians, to our fellows.

If Christians withdraw into the cloister because they are uneasy with the give and take of politics or fear being “partisan,” they put democracy at risk, and make more difficult not only the defense of marriage (the most contentious issue at the moment) but also the defense of the unborn.

William L. Saunders is Senior Vice President and Senior Counsel at Americans United for Life.

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