Posted by Gary Kukis on 10 August, 2010 at 2:24 pm. 7 comments already!


The judicial branch of the government is clearly limited by the first section of the constitution: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Those legislative powers are limited by the Bill of Rights, as well as by section 9 and other portions of the constitution.

When any judge or judicial group essentially makes law, modifies a law, assigns rights that did not previously exist, or strikes down a law which does not clearly violate the constitution, it is guilty of judicial overreach.  In fact, given what the courts have done over the years as compared to their assigned duties by the constitution, it does not appear that our founding fathers even anticipated that the court would seize the power that they have seized.

One of the areas in which people are confused is, just because the court makes a popular decision, that does not mean they had a right to make that decision.  Our government was designed to be slow and clunky.   Our government was further designed to be fraught with checks and balances, not just between the 3 branches of the federal government, but between federal, state and local governments.

Changes in civil rights came as a result of Congressional, Presidential and Judicial action.  However, in the area of civil rights, the courts had no business getting involved.  Now, if some African American was clearly granted this or that right by a Congressional act, and he was prevented from exercising that right, then the courts have a place to act.  But, what the courts did—no matter how you feel about civil rights—when it came to granted new rights or interpreting the law in some way or another—was wrong and judicial overreach.

In many cases, the courts should have kicked cases out and said, “Interpretation of this law is unclear, and for us to interpret this law would essentially mean that the courts are making the law.”  Then the court would send the law back to Congress, possibly put the law into limbo, possibly make suggestions, and let Congress deal with it.  Slow?  Absolutely.  However, had the courts taken this tact, we would not be in a place where one man—a 75 year old unelected Justice Anthony  Kennedy—would be the deciding vote  on some of the most important decisions in our lifetime.

I was exposed to the incredible power of the courts where I was a mere Freshman in college, and I knew about zero when it came to politics.  I had been raised a spiritual advance liberal, and, like many liberals, I could not understand how anyone could be conservative.  My college profession, Gottlieb Baer, was dramatic, argumentative, conservative, and one of the things which I recall from my first semester in his class was, there was this court ruling that said one thing, and then, the same court ruled exactly the opposite a decade or so later.  That struck me as weird, which is exactly what Dr. Baer wanted.

Dr. Baer was a great teacher, and although he was not the reason I became a conservative, he opened my eyes to the fact that, there are rational reasons for having a conservative view of life.  What he taught me took a few years to gel in my soul.

Here is one of the many ways to distinguish a liberal from a conservative.  If the court makes a decision that a liberal likes, they think that is a good thing, no matter what.  A conservative may or may not like the decision of a court, but if the court makes a ruling which is essentially legislative in nature, the conservative doesn’t like it, even if he likes the end results of the decision.

Process matters.

This brings us to the latest example of judicial overreach: the striking down of California’s Definition of Marriage Law.  The population of California decided what it believed that marriage ought to be (which is the traditional definition of marriage, held by almost all societies for several millennia); that it is between one adult man and one adult female.

This is obviously a moral decision, and, in case you did not know, almost all of our laws are moral decisions.   Our society decides, by voting and through our representatives, what we believe to be good and right, and in almost all cases where the people have spoken, they have agreed to civil unions for homosexuals but have drawn the line at same-sex marriage.

The lone judge which struck down California’s law wrote a 130+ page opinion, which is essentially the judge rationalizing why he disagrees with the people of California (who have voted in sync with the rest of the United States).  10 years from now, this may change; 2 years from now, this may change.  But Californians made a decision as a sovereign people as to what they judged to be right, and, unless there was a clear violation of one’s rights or of other existing laws, that should have been the end of it.  It was not.

For millennia, the concept of marriage has been confined to one man and one woman, which some exceptions of polygamy.  However, our nation (and most nations) have ruled out polygamy as a valid form of marriage through legislation, which is right and proper.

The objection cited was, that prop 8 violated The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”  It ought to be clear that there is nothing stated here about marriage.  We have life, liberty and property, and the state cannot deprive us of these things without due process.  Our freedom is limited by the law, which looks to balance our freedoms with the freedoms of others, so that, for instance, I cannot force Salma Hayak to marry me, even though I believe that this might be a good example of exercising my freedom.  In fact, when it comes to marriage, there is nothing in the due process clause which has anything to do with marriage.  Judicial overreach would read into this clause things which are not there and formulate things, like marriage between consenting same-sex couples, which are determined not just to be lawful but which become equivalent to a man/woman marriage.  That is judicial overreach, and no sane person can look at the clause and say, “That means, I have the right to marry who has the same genitalia as I have.”  This is a point at which, society has a right to choose.

Quoted in this case, and by many people, is, well, what about interracial marriages; people oppose those for a long time.  And they did, at various times, in various places in our country (and not since the founding, by the way).  Yet, it is not a judge’s choice to declare interracial marriage as some sort of a fundamental or constitutional right.  This is something that we, as a society, come to an agreement on.  I recall a fellow school employee remarking about an interracial kiss on TV, and how she didn’t think that she liked it very much (this was a few decades ago).  If that is where society is at, then so be it.  By the way, just because that gal did not like seeing the interracial kiss, it does not mean that she would vote against interracial marriages.

Process matters (a fundamental conservative principle).  Society gets to decide what is right and wrong, and, I would not be surprised if gay marriage became accepted by our society.  But there is a right way and a wrong way for this to occur.  Some judge, imposing his opinion over more than half of Californians, is the wrong way.  Dumping this decision in the lap of Justice Kennedy is the wrong way for this to be decided.

The equal protection clause was also cited to support gay marriage: no state shall deny to any person within its jurisdiction the equal protection of the laws.  Again, marriage must be read into this provision, even though that was not the intent of the framers.

What were some of the reasons such an amendment was passed?  Proposition 8 is simple and straightforward.  Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle.  It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage..TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage. One thing that we know for certain, from actions taken all over the United States, is that there are gay activists doing everything possible to get gay sex into the public schools.  Some bring it in under the guise of preventing bullying.  In some sex education classes to even elementary school children, they are being taught that there are 3 legitimate forms of intercourse.  These are not scare tactics, but stuff which is occurring today in some public schools.  So, this is a real concern.  Values and morals which directly contradict what most parents teach, and acts which need not be discussed even in high school, have been declared legitimate and necessary by some school districts.  And we have seen this escalate dramatically in just a couple of decades.

The point of the arguments for marriage as being defined as being between one man and one woman is, there would be dramatic changes to society far beyond Mitch and Tom living together forever in wedded bliss.

Do we as a society want this?  When put to a vote, almost every state has clearly said no.

From time immemorial, marriage has both protected the woman and the children, and has provided a basic framework within which society is stabilized.  Studies of single women raising children indicates that, their children are more prone to drugs, underage drinking, teen pregnancy and crime.  Those in prison tend to come disproportionately from single-mother families.

So, not only is there a long history of the traditional family, but when it comes to statistics, the traditional family has been shown to be ideal for the raising of children.

Given the complexity of this decision, and all of its ramifications, it ought to be up to California to decide what California deems to be correct and appropriate.  It should not be up to a judge, who somehow sees the word marriage in constitutional passages where is it not actually found.  In fact, that approach would make me suspect the judge’s own objectivity and/or mental state, yet another reason why this decision is not his to make.

Personally, I see only two solutions, and they may be nearly impossible: the Congress needs to pass an amendment limiting the powers of the court; or, the court needs to, in several landmark decisions, limit its own power.  Or both.  This would take some very principled men and women to move in this direction.  Are such people anywhere on the political scene today?

The entire decision concerning prop 8 is found here:

Some of the reasons given by the defendants who wanted to marry included, being embarrassed when trying to set up a joint bank account for two males and having to endure the question, “Is this a partnership or a company?”  One woman was concerned that she did not have a word to describe her relationship with her lover, and needed the marriage title in order of them to feel included “in the social fabric.”


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