Eagle Forum Legislative Alerts

Thursday, June 11, 2015

Courts Should Not Succumb to "Inevitability"

Supporters of same-sex marriage like to say that it’s inevitable. They point to the 37 states where it’s currently legal, even though most of those states had it imposed by unelected judges. The gays hope the upcoming Supreme Court decision will be a mere formality to ratify their position. But one amicus brief filed on behalf of 57 Members of Congress offer reasons why gay activists shouldn’t celebrate just yet. The brief highlights the importance of deliberation in our constitutional republic. Major public policy questions should be decided by the people and their representatives, not by unelected judges.

In most states, debate over marriage is ongoing. The upcoming Supreme Court decision would short-circuit this debate by declaring it over, once and for all. Support for restraint comes from, of all people, the famously liberal Justice Ruth Bader Ginsburg. This justice reflected on the Roe v. Wade decision that swept away pro-life laws nationwide. What she said about abortion could easily apply to an activist decision about marriage: “Heavy-handed judicial intervention [in Roe v. Wade] was difficult to justify and appears to have provoked, not resolved, conflict [about abortion],” those words heard from Justice Ginsburg. The court should learn an important lesson, and generally allow incremental changes in constitutional rights.

Finally, the court should consider claims of novelty. Marriage was defined as the union of a man and a woman throughout our country’s history. Same-sex marriage, on the other hand, has only taken off in the last decade, and even now, only 11 states have adopted it through the democratic process. Sweeping away the traditional definition of marriage would exchange a tried-and-true institution for a novelty. A judge should not be making that decision. It should be made by the people and their elected representatives.

Listen to the radio commentary here:

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