The Supreme Court of the United States will soon hear arguments concerning same-sex marriage in the state of Alabama. As well they should. But the manner in which the adversarial process has been proceeding is entirely out of order (insert wry smile). The process of the process has been established for a reason. It remains the vanguard of equal justice. Laws can be passed and they can be repealed. But they are not to be ignored. Indiscriminate justice fails to provide any justice at all.
It is in this spirit of justice that Supreme Court Justice Clarence Thomas has criticized his peers regarding this forthcoming case. He said in his dissent from the court’s opinion to allow same-sex marriages to continue contrary to current law, “this acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.” There is no malicious intent in Thomas’ words. There is only a desire to maintain the integrity of the process that exists to protect all-sex citizens. It is an appeal to the foundation of this country which finds itself embattled with the kraken of judicial activism.
The Constitution of the United States was never designed to be the end all be all for all time concerning governing or legal matters. The founders understood that there would be a need for change in the future, that there would be circumstances impossible to foresee at the time the document was crafted. What was established was a thorough basis for self governance that could be amended and yet still preserved. Therefore, what is law today can be legally changed in the future… through the amendment process.
The process to change the Constitution was made intentionally arduous. There have only been twenty seven amendments to the Constitution since its inception, and ten of those were essentially part of the bargain to ratify the original document—also known as the Bill of Rights. The short version of the amendment process is that any proposals must pass through congress and then be sent to and ratified by a supermajority of individual states. This difficulty is meant to safeguard existing law. The whims of those in power cannot be imposed upon the rest of the nation without consent. At least, that’s the idea.
Now (not surprisingly in any historical context concerning people with agendas and the power to impose them) there are those who view this as a quaint process and have determined that the trials of acquiring actual amendments are too burdensome a remedy for the perceived injustices of the modern day. And lucky us, these folks just happen to be in a position to affect change as they see fit. As sitting justices in the courts of the United States.
Why follow that pesky, antiquated Constitution, with all of its rules and requirements? These proactive activists can determine what should be, based upon their personal beliefs (any influential bias notwithstanding) and then dictate what the law will be going forward. No constitutional basis for a decision required. This is the proper context and definition of judicial activism.
Now whatever views are held on issues concerning same-sex marriage or gun rights (or control if you prefer) are immaterial to these circumstances. What is vital to our ever changing society is that the law be a dependable foundation for any future change. If marriage is defined under the law then it is the law than needs to be amended. If guns are deemed too dangerous for the likes of us CRAZIES, then the second amendment needs to be abolished. Until such time as the laws governing our society are amended, through the established process, the prevailing law stands and is to be enforced. It is the duty of the sitting justices to apply these laws to the cases before them. It is a dereliction of duty to apply baseless personal opinion, or simply refuse to enforce the laws.
Now there have been attempts to co-opt the phrase judicial activism and apply it to situations where a particular decision by a court led to an undesirable outcome. But as the conniving cat said about the one-winged sparrow, “that just ain’t gonna fly.” Applying the Constitution to a particular case and delivering a ruling is not the action of an activist court, it is the job description of sitting judges. Activist judges seek to circumvent the process. They determine that what was unconstitutional yesterday is acceptable today and vice versa, without a constitutional principle supporting such a decision. This is not the rule of law as directed by the Constitution but the rule of those with an agenda and the power to impose it on the nation.
We can and should debate the issues. As time goes on values and social customs will change and it is just that the laws reflect those changes. However, the pastor must stay behind the pulpit. Until such changes are enacted, personal opinion without legal justification is irrelevant in the face of the duty placed before the powers that be. In order to maintain stability and justice in our system, the process of changing laws, as outlined in the Constitution, must be preserved.
If no constitutional basis can be provided for a decision, those officials can be held accountable at the voting booth. You can learn about rulings, particularly the higher profile ones, and the justices involved. Then, take notice when those names appear on a ballot. You can choose whether or not to retain those justices and the representatives who appoint them. You can choose whether subjective whim or legal justice rule in the United States.
“No man is good enough to govern another man without the other’s consent.”