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Just Judges?

by James Hitchcock
October 6, 2004

The voters in Louisiana, following the lead of several other states, voted this fall to not to allow homosexual "marriage." Obligingly, within a very short period of time, a judge declared this to be unconstitutional.

I say "obligingly" because for many years people pushing for social change have known that, if they shop around a little, they can find a court that will give them just about anything they want. We have in effect two different, even opposed, governments -- that of elected officials answerable to the voters and that of judges who are beyond anyone's control except that of judges at a higher level.

As the election approaches, polls show that people usually mention the war and the economy as the issues that concern them most, which is not surprising but is misleading, because I think most people do not fully understand how the judiciary functions and what great effect it has on national life. When courts hand down unpopular decisions people are outraged, but they seldom seem to ask themselves how that came about.

Polls show that an overwhelming majority of people oppose homosexual "marriage" and partial-birth abortion and think religion should play a major role in public life, to take only some of the obvious issues. Over half the electorate should now be classified as pro-life.

But that is precisely the point, say the defenders of the courts. The people simply cannot be relied upon to do the right thing, thus we have to have unelected guardians who correct the people's ignorance. Liberals who are passionate about what they consider undemocratic elements in our system, and talk continuously about giving more power to the people, here take the exactly opposite position. The justification for all-powerful judges simply comes down to the fact that the people really cannot be trusted.

Of course the rationale for all this is the Constitution, the fact that the Bill of Rights exists to prevent a majority from oppressing minorities. The fallacy is the courts' claims that they have "found" a right to abortion or homosexual marriage in the Constitution and that the Constitution decrees a secular society. This is as blatant an exercise of power as any king ever thought of, government not by law but by decree -- "the law is what the judges say it is."

In the coming election it is not clear how much the main candidates actually differ over the war in Iraq, and it is always doubtful how much any president can do about the economy. Thus I think that, especially for religious believers, the future of the courts ought to be the primary consideration. The war will eventually end, the economy will continue to have its ups and downs, but changes decreed by courts in the very fabric of social life will endure for many decades.

The Supreme Court had been divided along a 5-4 knife edge for some time, with the "swing votes" going now one way, now another. It is reasonable to assume at least three new appointments during the next presidential term, and the character of those appointments will have immense effect on national life.

To mention only the most obvious, there will probably be court cases over homosexual marriage, abortion, human cloning, the role of religion in public life, suicide, euthanasia, and the rights of parents over the education of their children. If the courts are remade in a permanently liberal way, the "culture wars" will be over and the moral and religious beliefs of the majority of Americans will have been permanently excluded from public life. In the coming election no issue is more important than that.

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. Dr. Hitchcock's The Supreme Court and Religion in American Life, Vol. 1 The Odyssey of the Religion Clauses and Vol. II From 'Higher Law' to 'Sectarian Scruples', were released by Princeton University Press September 2, 2004.

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