A Runaway Judiciary

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.”


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14 Replies to “A Runaway Judiciary”

  1. Thank God that judges whether they acknowledge Him or not are accountable to Him even if they are holding themselves accountable to no one else.

    In the end the people will not sustain this tyrrany of judicial activism and will rise up. What a dreadful thing! This has been the history of the world.

    Greg Brien

  2. Since when did paper work make sin right?


    Great articles, Bill, thank you for standing God’s way, the only right way.

    Judith Bond

  3. Heilary Klinton or B. Hussein Obama would appoint such activist judges. Just like Laba politicians here, they are happy to let judges do their dirtier work for them. But voters should hold them responsible for the judges they appoint, especially if they also give them more power.

    The fact that many American Christians will vote for either of these two, who support partial birth abortion, shows that American Christianity is a mile wide and an inch deep. Obama even supports infanticide and euthanasia, and regards babies as a “punishment”, as Nat Henthoff notes with utter disgust. How shameful that Henthoff, an atheistic lefty, is more upright than many churchians on this matter.

    Jonathan Sarfati, Brisbane

  4. Hi Bill,
    You wrote: “Of course we are in an explosion of “rights” talk. Everyone is demanding rights while few talk about responsibilities”
    Now, I don’t want sidetrack the discussion too much, but could you cite where in the Bible, it effectively says or implies that we are “endowed by our Creator with certain unalienable rights”? I know I have touched on this topic before, but we really didn’t deal with it properly.
    ie. Could you spell out the Biblical basis as you see it, for this statement?
    This is a sincere question, as I have been thinking/praying about this issue for a while and I feel that this subject, which you hint or “nibble” at in your article, needs to be really “chewed” on.
    Of course my point in asking this question is, if possible to lay bare the root cause of disfunctional government as you have higlighted. I am attempting to “tease it out” so to speak and promote useful discussion.

    Robert Phillips

  5. Australians should beware of the move to allow our judiciary to govern us for that is what will happen if we have a Bill of Rights. The law as we have it now (except in Victoria) allows basic rights to all people and at least if we don’t like it we can vote the Government out; not so with judges.
    Thanks Bill for keeping this matter before the people. The litigation that occurs in America as a result of their Bill of Rights has made many lawyers eager to have a similar Bill of Rights here.
    Jane McIntosh

  6. Greg Brien said:
    In the end the people will not sustain this tyranny of judicial activism and will rise up. What a dreadful thing! This has been the history of the world.

    Sometimes the tree of liberty must be watered by the blood of tyrants and patriots.

    Michael Mifsud

  7. Dear Bill,
    Thanks for your courageous statements. The fact that marriage is between a man and a woman so that any children of the marriage can be protected is completly ignored by our activist judges. They are a blot on the landscape. Keep up the good work.
    Kind regards,
    Pat O’Brien.

  8. Thanks Robert

    It seems that there are two parts in answering your questions. One is the general idea that the Judeo-Christian worldview gave rise to modern ideas of human rights, freedom and democracy. Ancient Greece and Rome were really very limited in these ideas, with widespread slavery, infanticide and chauvinism. Christianity, based on the idea that we are all made in God’s image, and therefore are all equal, was able to elevate the status of women, put an end to practices such as infanticide and slavery, and give a solid basis for such things as democracy and freedom. So notions of human rights derive in large measure from the biblical understanding of who we are as made in God’s image.

    Having said that, things are a tad different for the believer. While we celebrate the freedoms and human rights which our faith has enabled in the West, we realise that we are in fact servants to Christ. You see, the Bible talks very little about rights, when it comes to being a follower of God. Talk instead centres on our duties, responsibilities, obligations and service to our Lord. Thus we should be willing to forgo our rights, and instead be willing to serve God and others.

    So in terms of public policy, the Judeo-Christian worldview really helped to make human rights and freedom possible, but in terms of our role as Christians, we are to follow the example of Jesus and be a servant to all, instead of demanding our own rights.

    Yet we have obligations as both earthly citizens and heavenly citizens. Thus we can fight for human rights for others (and ourselves) as in the Christian battle against slavery, but as individual followers of Jesus, we may waive our rights in the interests of serving God and winning others to the faith.

    This is just a brief intro to such issues. I hope that it starts to answer some of your questions. Let me know if it has not.

    Bill Muehlenberg, CultureWatch

  9. To answer Robert Phillips’ request for “where in the Bible, it effectively says or implies that we are “endowed by our Creator with certain unalienable rights”?”

    I would say that the right to life is implied by Genesis 9:6 and also in the commandment “Thou shall not murder”. The right to private property is implied in commandments like “Thou shall not steal”, etc. Clearly certain rights are presupposed by many biblical passages.

    Ewan McDonald.

  10. Thanks Bill,
    You seem to have divided the issue into secular & faith “realms”. The problem with this as I see it, is that these two zones have siginificant overlap and therefore this distinction is not entirely helpful. For example a believer is still a citizen who is obliged to obey the governing authorities as outlined in Romans chapter 13. Conversly, an unbeliever is still accountable to observe every injunction in the entire Biblical account. In fact an unbeliever is commanded to beieve!! Their continued disobedience is a cause for Gods displeasure.
    ie. Unbelievers are subject to all of Gods requirements as I see it, they don’t somehow, “get off the hook”.

    You said: “So notions of human rights derive in large measure from the biblical understanding of who we are as made in God’s image.”
    However, I would have thought from a straight forward reading, that a “Biblical understanding” as an individual, does not so much, confer intrinsic “rights” on me as it imposes responsibilities toward God and our fellow man. This is the case whether you are a believer or an unbeliever. ie Because we are Gods image bearers we are to act like him. How did he act? He did not demand his rights when he went to the cross. Just because an unbeliever may be ignorant of these facts does not thereby relieve him/her of accountability to God for how they have borne His image.

    For example, you say for a believer things are a “tad different” where: “Talk instead centres on our duties, responsibilities, obligations and service to our Lord”. This could be summed up as the 2 great commandments, 1. Love God and 2. Love your neighbour as yourself, could it not?
    My question is: In what way is an unbeliever relieved of these 2 onerous responsibilities? ie how is it a “tad different”?
    Now, I know that we wont be making laws for people to “repent and believe” any time soon, but I hope you see my point, as it does relate to public policy.
    And it relates to public policy in this way: Gay marriage does not show love towards ones neighbour as it disfigures man made in the image of God. It does not show love toward God, as it disobeys what he has commanded.
    This gay marriage law is not just bad for believers but also for unbelievers.
    Finally you said: “You see, the Bible talks very little about rights, when it comes to being a follower of God.”
    My response in light of what I have said above is that the Bible talks very little about rights, when it comes to being a…Man or Woman, period. I think this type of thinking is a false dichotomy, that is between believer and unbeliever, when it comes to the subject of “rights”.
    So….getting back to my original question where in the Biblical account do we find, the concept of “unalienable rights”? I think you have yet to answer my question…..?

    God Bless
    Robert Phillips

  11. Thanks Robert

    I think I pretty much said the same thing. I said we are citizens of two kingdoms, and have obligations to each. I said we mainly have responsibilities more than rights as believers, etc. The “tad different” bit was basically to say that as followers of Jesus we are called “bondservants of Christ” and other terms in Scripture which might not make much sense to a non-believer. I did not imply that a nonbeliever has no obligations toward God. I meant to say that the believer is willing to waive his rights in the interests of serving God and others, that’s all. We are servants of Christ, and do not trumpet our own rights.

    What you might be getting at perhaps (and I am still not fully clear what you are driving at) is that we are all guilty before God, and all have obligations before God. Paul in Romans 1 and 2 makes this case. We all have the moral law written in our hearts, and we all stand guilty because we transgress that law.

    As to the phrase “unalienable rights,” that of course comes not from the Bible but the US Constitution. So the only rights we have are those which God gives to us. And these rights always have corresponding obligations.

    And I of course agree with you about things like same-sex marriage. And I believe that God’s moral law applies to us all. How that is expressed in secular judiciaries and legislatures is another matter.

    Bill Muehlenberg, CultureWatch

  12. Thanks Bill,
    You know, sometimes I’m not quite sure what I’m getting at either…its like a itch that I can’t scratch!!!
    For example something like Malachi 3:5 which speaks against those who defraud laborers of their wages, the passage is not so much talking to the laborer, that is: Hey you laborer!! go on stick up up for yourself!! Insist on your “rights”!!
    Once again it speaks more against those who do such a thing, as defrauding someone of their due. In fact in this passage, it is God himself defending them!!
    Okay maybe I am being a bit obssesive with this “rights” thing, but when the thought originally occurred to me, it seemed “revolutionary”….ie don’t insist on your “rights” instead trust in God and try to fulfil your obligations!!
    Thats really pretty radical in todays world don’t you think? Imagine what would have happened, if the U.S. constitution it had been drafted this way!!!

    “We believe all men are endowed by their creator with certain unalienable obligations”!!! Awesome!!…and scriptural.


    Robert Phillips

  13. Thanks Robert

    OK, that is another direction we can proceed with. If it is a question of just how much a believer should stand up for his or her rights, that is another issue, and a complex one. For example, we are told to offer the other cheek when struck. There we seem to forego our rights. Yet when Paul is challenged in Acts he appeals to Caesar, that is, he makes use of his rights as a Roman citizen, and seeks justice.

    There a millions of cases when a believer must ask, ‘should I stand up and demand my rights, or should I allow God to work on my behalf?’ For example if a believer is falsely accused (I was just told a story today of a believer fired from his job, and perhaps somewhat unjustly), should he stand up for his rights, or trust God to work good out of it? In the case of this person, he felt he should not argue the case, and believe God to come up with something better.

    But I think both responses can be appropriate. We do not have to be doormats, and let people walk all over us. There is a place for standing up for ourselves and speaking up. But sometimes God may lead us to endure our troubles and wrongs, and not have us seek to defend ourselves. He will defend us, in one way or another. I guess in many ways it depends on the situation, and what God is calling one to do.

    But these are all examples of personal ethics. Social ethics is another matter. This involves third parties. Romans 13 gives us the duties of the state to punish wrongdoing and to work for justice. Governments should deal with wrong doing and injustices, while individual believers may be willing to forgive instead of pressing charges, eg. It is when a third innocent party comes into play that we can and should talk about protecting them from injustice and wrong. So the responsibilities of the state may at times differ from those of the individual believer when it comes to questions of justice and dealing with wrongdoing.

    But as I say, it is a big topic, and a very complicated one. Worth another article I suppose.

    Bill Muehlenberg, CultureWatch

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