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First they came for the communists, but I was not a communist, so I did not speak out. Then they came for the socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew, so I did not speak out. And when they came for me, there was no one left to speak out for me.
– Pastor Martin Niemoeller.

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Same-Sex Marriage: Who Decides? - Monday, August 16, 2010 at 00:00


Same-Sex Marriage: Who Decides?

David C. Stolinsky, MD
Aug. 16, 2010

In recent years, several important court rulings have come down. Note the expression, as if judges sit on Mount Sinai and deliver their decisions carved on stone tablets.

Now a single federal judge ruled that Proposition 8 − which was voted for by 52.2% of Californians and defines marriage as between one man and one woman − violates the U.S. Constitution. Neither Governor Schwarzenegger nor Attorney General Brown will appeal his decision, so an appeal may not be possible.

The judge disrespected those who oppose same-sex marriage. But he also disrespected those who favor it. In effect, he told both groups, “Your opinions are worthless − I make the decisions here.” The only Californians who were not disrespected were those who didn’t bother to vote. They were confirmed in their belief that their votes are meaningless. How sad for a supposedly free people.

One unelected, unaccountable official with a lifetime job can overrule the majority of our most populous state, who twice expressed their will on this issue. He took it upon himself to redefine marriage fundamentally for the first time in history. He claimed to find in the U.S. Constitution a right to same-sex marriage, something that no one had known was there since the Constitution was adopted in 1789, or at least since the Fourteenth Amendment was adopted in 1868.

There are only two possibilities: (1) It was there all this time, but only this judge is clever enough to find it. (2) He made it up to suit his own prejudices.

The key question is: Who decides? Is it appropriate for citizens of a free nation, and their elected representatives, to wait submissively for unelected judges with lifetime jobs to decide key questions for them? Jefferson had this to say:

I know of no safe depository of the ultimate powers of the society but the people themselves.

As Ben Franklin emerged from the Constitutional Convention, a woman asked him what kind of government we would have. He replied, “A republic, if you can keep it.”

Well, can we keep it?

The Constitution established the federal government with three branches – legislative, which makes the laws; executive, which carries them out; and judicial, which interprets them. The Constitution guarantees that the states also will have a republican form of government.

The three branches of government were equal. No one branch was allowed to have too much power. None could order the others around, as if they were servants. But now, the courts can give orders to the president and Congress at the federal level, and to governors, legislatures and the people at the state level. The self-anointed “elite” believe they know better than the “common” people. And we are letting them put this belief into effect.

Marriage has been defined worldwide as between a man and a woman since the beginning of civilization. This was true in Judeo-Christian America, Christian Europe, the Muslim Middle East, Jewish Israel, Buddhist Tibet, Hindu India, Zoroastrian Persia, Confucian China, Shinto Japan, and pagan Africa. It was as true in the atheist Soviet Union as it was in Catholic Medieval Europe or pagan ancient Rome. The only modification in history was when polygamy was outlawed in most nations.

But now marriage is being redefined. The effects on the family, especially children, will be profound and unforeseeable. Surely such a momentous change should be:

● Carefully considered, with the input of religious and secular scholars.

● Discussed by the people until a consensus is reached.

● Debated by the people’s representatives in the legislature.

● Voted on by the people or their representatives.

If this process had been followed for abortion, there would be much less bitterness today. But the Supreme Court wouldn’t wait – it decided the matter itself. Having learned nothing, courts are still short-circuiting the decision-making process and taking matters into their own hands. Courts decide, often by slim margins, the most important matters, then cram their decision down the throats of the people. But so long as the decision goes along with your beliefs, you see no problem.

You’re for same-sex marriage, so you nod approval when a federal judge orders California to accept it. You know that the “full faith and credit” clause of the Constitution probably will force the other 49 states to recognize same-sex marriage.

It doesn’t bother you that one man in a black robe can give orders to 310 million Americans, 61% of whom (Newsweek poll) disapprove of same-sex marriage − because you do approve of it. But what if courts decide to impose their whims on you, and you don’t agree?

● What if courts in a state where Muslims are influential force us to recognize polygamy? This is already happening in Britain and Canada. If I am a “homophobic bigot” for opposing same-sex marriage, why aren’t you an “Islamophobic bigot” for opposing polygamous marriage?

● What if courts in another state force us to recognize marriages of adults to 14-year-olds or even younger children, or to close relatives? Isn’t love the only thing that matters?

● What if there is another 9/11, and the Supreme Court approves sending all Muslims to internment camps? Japanese and Japanese Americans were interned during World War II, and the court approved. Who says it can’t happen again? Who says tyrants in black robes must be liberal?

But, you say, we’re protected by the Constitution. Really? The Constitution mentions the death penalty four times, but doesn’t mention abortion at all. Yet judges insist that the Constitution contains a right to abortion, but they repeatedly block executions.

What’s there they can’t find, but what isn’t there they do find.

Legal scholar Don Kates points out that only the secondary purpose of law is to punish violators. The primary purpose is to let us know what the law is, and secure our cooperation. But now we can’t know what the law is by reading the Constitution or studying law books. We must read today’s paper to find the latest judge’s ruling. “Law” that is unpredictable and arbitrary isn’t law at all, but a dictatorial decree. It loses any moral claim to be respected.

If judges can rule that the Constitution doesn’t say what it does say, and does say what it doesn’t say, in effect we will have no Constitution, and be ruled by tyrants in black robes. What will you do when your favorite right disappears? How will you react when you’re ordered to do what violates your deepest beliefs?

But then it will be too late. You already agreed that the Constitution is a “living document” to be interpreted according to judges’ whims. A “living” Constitution is really a dead Constitution. It is merely an excuse for judicial tyranny.

Liberal law professors claim that the Constitution empowers the federal government to control everyone’s health care, but that it forbids the states from defining marriage the way it has always been defined. That’s not the Constitution − that’s their own belief system masquerading as the Constitution.

What is decided may be of great importance. But who makes the decisions will surely affect the future of our country. In answer to Franklin’s warning, I have to reply: I just don’t know, Ben. I hope we can keep our republic. But right now, things don’t look promising. President Obama promises to appoint judges who render decisions because of “heart” and “empathy.”

Empathy for whom? Those who revere Judeo-Christian values, or those who want to overthrow them? Empathy can be either good or bad, depending on where it is directed.

Unelected officials who rule a nation on the basis of their personal feelings are tyrants, not judges, whether they wear brown uniforms or black robes. The people they rule are subjects, not citizens, whether they know it or not.

I can foresee only three possible outcomes:

1. The current process continues, and a leftist minority turn the nation into a socialist regime, with all power concentrated in their own hands. Regrettably, at present this seems most likely.

2. We replace power-hungry judges with judges who will rule according to the actual text of the Constitution and the intent of its authors. A first step would be to amend the Constitution to make the terms of judges finite. Only dictators have lifetime jobs. But amending the Constitution is extremely difficult. At the very least, we must elect a Republican Congress that will confirm only judicial appointees who respect the Constitution.

3. We resort to nonviolent civil disobedience, as did the civil-rights marchers of the past. Judges cannot enforce their rulings − they depend on us to do so. This is hardly ideal and carries risks, but it may be the only feasible way to free ourselves from judicial tyranny.

The third alternative seems the most radical, but it may be the most conservative. Every public employee in this nation − from the newest recruit in basic training to judges to the president − takes an oath to support and defend the Constitution against all enemies, foreign and domestic.

All officials hold office under the Constitution. If what they mean by “the Constitution” amounts merely to their own whims, and not the actual Constitution, then they have no basis to hold office. And we have no duty to obey their orders. In discarding the actual Constitution, they renounce the source of their own authority.

If judges and other officials forget their obligations, we must remember ours.

Dr. Stolinsky writes on political and social issues. Contact: