Legislating from the bench. . .

In January of 1973 the Supreme Court decided that it had to get out ahead of everyone and make a decision which may or may not have been made through the legislative process, namely the make abortion legal.  Ever since the nation has been severely divided over this issue, in part because we as the people of the land had not say so whatsoever and were deprived of a debate on this issue.  I am not naive enough to believe that there would have been unanimity if the Supreme Court had not acted to decide this case but I do believe that their decision to act arbitrarily and without a consensus of public opinion has made the wound of abortion impossible to heal and one which continues to bleed through so many different issues.  In one sense it can be said that the Supreme Court made the sides even more divided and gave the positions more polarity than ever before.

Now it seems another court, this one seemingly hesitate to step into the example of that court, has inadvertently done exactly that, again!  In casting aside DOMA, the Supreme Court seems to have provided the legal framework for every state's constitutional ban on gay marriage to be overturned.  Whether you agree or disagree with the outcome, the nation is headed down the same path that we saw in 1973 when the Supreme Court stole the issue away from the people and the states and imposed an opinion upon a nation unprepared to have it settled from the bench.

[U.S. District Judge Arenda Wright Allen]  joined a so-far unanimous group of federal judges considering a question that Supreme Court justices left unanswered in June in their first consideration of gay marriage: Does a state’s traditional role in defining marriage mean it may ban same-sex unions without violating the equal protection and due process rights of gay men and lesbians?

All have answered that the reasoning the court used to strike part of the Defense of Marriage Act– which forbade federal recognition of same-sex marriages performed in those states where it is legal–means states cannot defend the marriage bans.

Wright Allen put it this way: “The legitimate purposes proffered by the proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse ‘responsible procreation’—share no rational link with Virginia marriage laws being challenged.”

You can read the whole report here.  The point of this post is not to say which side I am on (that should be obvious to even a casual reader of this blog) but to illustrate how one judicial activism of the 1970s has created a seemingly insolvable divide in American culture, religion, and politics and how we are dangerously close to have it all repeated again over another issue -- gay marriage.

If you look at the graphic which shows where states stand on gay marriage, it looks remarkably like the great divide of red and blue states.  This division is a grave threat to the moral and cultural consensus that is essential to our nation's future.  It also represents the serious and unmovable positions of those who feel that they have been disenfranchised from the very process itself when actions are imposed by judicial fiat.  If you took the same maps and separated out the more liberal urban areas from the rural areas, you would find a nation even more divided in values and more and more conflicted over the old issue of abortion and the new issue of gay and lesbian marriage.  Where do we go from here?  Those who find the political climate in America too divided, too intransigent, and too mean spirited will find little hope for improvement as one more issue gets decided by people who were not elected by nor are accountable to the people.  I hope the judges consider this as they decide to impose opinions upon America by judicial fiat when they find the political process of legislation either too slow or headed down the wrong direction.  Legislating from the bench is never a good idea even when the cause may be right.