Democracy is always a precarious thing at the best of times, and the increasing rise in judicial activism is not helping matters much. Throughout the Western world we see examples of judges running amok, ignoring the will of the people and pushing activist agendas.
The most recent example of this was in California where leftist judges decided to strike down a ban on same-sex marriage. It seems our enlightened judges feel they know better than the average citizen, and must make rulings that contradict mainstream opinion – all for their own good of course.
And since judges are usually unelected, unrepresentative, and accountable to no one, they know they can get away with this exercise in social engineering. Two commentaries on this ruling are worth drawing on, one from the US and one from Australia.
Chuck Colson devotes a recent column to this case, and reminds us of the problem of an activist judiciary. “A decision by the California Supreme Court to declare unconstitutional any ban on gay ‘marriage’ is sending shock waves across the nation. The 4-3 decision announced Thursday not only legalizes gay ‘marriage’ in the largest state in America, but it also overturns both the referendum of the people and the representatives of the people.”
Of course we are in an explosion of “rights” talk. Everyone is demanding rights while few talk about responsibilities: “The only way the California Supreme Court could override the people is by saying that gay ‘marriage’ is a natural right. But nowhere do we see this in the federal or state Constitutions. While the founders of this country wrote in the Declaration of Independence, ‘We hold these truths to be self-evident that all men were created equal and endowed by their Creator with certain unalienable rights,’ they never would have intended or imagined that those noble words would be used to support something like gay ‘marriage’.”
This is another case of inventing rights that had previously nowhere existed: “In essence, these judges have created a new right out of thin air.” In so doing, they overturn millennia of understanding regarding the importance of heterosexual marriage and family. Says Colson, “over the centuries in Western civilization, public policy has recognized the vital role of the family – that the heterosexual family needed to be protected and defended in the law, because it provided crucial benefits for the well-being of society and family. That is different than a question of civil rights. Marriage always, everywhere until recent years, has been protected for the good of the state and the families.”
He concludes, “I guess I am not surprised by what happened in California. I have seen judges out of control for years. What I cannot fathom is how they would do it under the guise of natural rights. If the democratic process means anything, it means the consent of the governed. We cannot let the courts do this, or we do not have a democracy.”
Janet Albrechtsen, writing in the Australian, has similar concerns. “There is a certain class of inner city sophisticates who believe that judges belong to a class of higher moral beings than dim politicians. They take delight in reminding us that we bumpkins in Australia lag the rest of the world. They beseech us to catch up with the rest of the urbane and refined world by handing more power to judges via a charter of rights to allow them to mould a more enlightened world. Before we do, we should keep an eye on what’s happening in the rest of the world. Right at this moment it pays to watch the American judiciary as a foretaste of things to come in Australia.”
She continues, “The Supreme Court of California, in a 4-3 ruling last Thursday, legislated in favour of gay marriage. Never mind that 61% of Californian voters said no to gay marriage in a state wide plebiscite on the matter in 2000. The judges apparently know better what the people should want. While TV talk show host Ellen DeGeneres and her actress lover, Portia de Rossi, are racing to the altar after last week’s decision, America is potentially headed for another unnecessarily bitter divide thanks to meddling judges.”
She agrees that these judges are an unaccountable lot, who simply make things up as they go along, and too bad about the people. “As The Wall Street Journal said, the fine judges of the Californian Supreme Court ‘told both the state’s voters and its elected legislature to get lost.’ The court’s contempt for the people and its politicians is especially striking given that California has, for some years, allowed same-sex couples to enter ‘domestic partnerships’ conferring essentially the same rights as marriage. Californians made a deliberate judgement to define marriage as the union between a man and a woman and to bestow similar benefits on same-sex couples under a different name. That was not enough for the Californian Supreme Court.”
This should serve as yet another warning to those well-intentioned but misguided groups who are saying we should grant homosexuals special rights, so that we can in the process protect heterosexual marriage. Sorry, but the more special rights the homosexual lobby gets, the more it seeks. And our activist judges will agree with them every step of the way.
Given that our new Labor Government wants to go down the path of a Bill of Rights, or Charter of Rights, we will simply see more of this activity taking place. Increasingly law will be determined by unelected judges who think they know better than the masses.
Thus the kind of activism just witnessed in California will only increase here. As Albrechtsen concludes, “Western democracies are undergoing a fundamental battle. A lawyer class is claiming the right and the power to dictate social change regardless of what the people want. By all means call me a hillbilly democrat, but when judges start to call the shots on basic social issues such as gay marriage, then we are left with a tyranny of judges. Their good intentions do not get them off the hook for undermining democracy. Indeed, as CS Lewis said, of all tyrannies, a tyranny exercised ‘for the good of its victims’ may be the most oppressive.”