The Real Culprit is Our Outlaw Judiciary

In a recent issue of Crisis Magazine, Jennifer Roback Morse gave three reasons why religious liberty arguments do not seem to be working for conservatives in their battle to save traditional marriage. First, many people no longer believe in God, and thus simply don’t care much about religious liberty. Second, we are asking people to give up something they value more (sexual freedom) in exchange for something they value less (religious freedom). Third, when we invoke religious freedom in our arguments against same-sex “marriage,” we are focusing on our own hurt feelings and appear to be “whining.” Dr. Morse concludes with a plea for conservatives to focus their attacks on the real culprit in the marriage controversy—the sexual revolution, which has inflicted harm on millions of people in myriad ways.

Along with many conservatives, I certainly share Dr. Morse’s frustration with the way in which the most time-honored institution of Western Civilization is being put to death without even the prospect of a respectful burial, and I agree that the Sexual Revolution is one of its’ underlying causes (as are philosophical and biological materialism, radical skepticism, crony capitalism, New Age “religion,” and a host of other things). But I agree with Matt Bowman in his response to Dr. Morse that dropping the religious liberty argument will harm rather than help the cause of traditional marriage.

First, I think Dr. Morse has greatly underestimated the importance of getting rid of religious liberty itself as an important—perhaps even an ultimate—goal of many same-sex “marriage” advocates. We are way past the point at which we can pretend that same-sex “marriage” activists are merely looking for tolerance and non-discrimination. If homosexuals were merely looking to legitimize certain forms of sexual behavior via matrimony, then surely they would not need (or want) to force Christian florists, photographers or restauranteurs to cater their weddings. But they do seem to want precisely that. And this means that their ultimate goal cannot be merely a right to marry. Rather, it appears to be the very right to force Christians to violate their religious principles that is most coveted by many same-sex “marriage” proponents. We should not forget that the same-sex “marriage” movement is not an isolated phenomenon, but is rather one prong in a much wider attack on Christendom itself.

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Second, I think the facts noted in support of Dr. Morse’s recommendation are incomplete. Let’s look more closely at the first two points. The first point, that many people no longer believe in God, is at best only a partial truth. Recent public opinion polls certainly don’t suggest that most Americans are atheists or agnostics. I suspect that many—perhaps most—American elites might be described this way, and if so, that would go a long way toward explaining why so many corporate CEOs, media figures, intellectuals, and celebrities have jumped on the same-sex bandwagon so quickly. It might also help to explain why federal judges have moved with such haste to enshrine gay “marriage” in the Constitution. As I suggested in an article written a few years ago, the courts have been manipulating the Constitution for several decades in order to bring it more into line with the contemporary values of “enlightened elites.”

The second point is closely tied to the first. Whether people value sexual freedom more than religious freedom greatly depends on whether they really are religious, and in what sense. It may be presumed that serious Christians care at least as much about religious liberty as they do about sexual freedom, and most ordinary Americans self-identify as Christians. Moreover, despite what questionable recent polls or Justice Ginsberg say about the readiness of the American public to accept same-sex “marriage,” it is unlikely that we would even be talking about this issue absent the court-induced pressure of the last few years. As Austin Ruse has pointed out in Crisis:

We have won the argument over marriage. We have won 34 statewide elections where traditional marriage was on the ballot. We did this even though the polls showed us losing most of them, perhaps all of them, prior to the vote. We won even in liberal states like California. We won even during Democratic primaries like Missouri. Our opponents persuaded the people in a measly three states to vote with them on faux marriage. We have won the debate, at least for now. We have largely won on religious freedom also. Religious freedom is the law of the land federally and in 32 states. A look at recent polls shows that even on this seemingly divisive issue, we have still convinced a majority of Americans that the Christian baker should not be forced to serve a faux marriage that violates his religious freedom. Yet, our votes are overturned by a combination of black-robed elites, craven corporations who have turned on their customers, the mainstream media, and cowardly GOP politicians.

John C. Eastman adds to this the cumulative totals from 39 statewide elections in 35 different states: “51,483,777 votes in favor of retaining the man-woman definition of marriage, versus 33,015,412 votes in favor of same-sex marriage. That’s a vote margin of 60.93 percent to 39.07 percent, a landslide in American politics.”

The fact is, conservatives are losing the battle over traditional marriage and religious liberty for one simple reason: judicial supremacy. The craven corporations, the mainstream media and the cowardly politicians mentioned in Ruse’s quotation have all followed the black-robed elites—not the other way round. For the last several decades, we have stood by and watched as the federal courts appropriated and manipulated the Constitution in such a way as to make it serve the interests of elite public opinion. In 1958, we watched as the Supreme Court declared itself (for the first time) the ultimate interpreter of the Constitution. In 1962 and 1963, we watched as the Court declared public school-sponsored prayer and Bible reading unconstitutional. In 1965, we watched as the Court fabricated an extra-constitutional “right to privacy,” and in 1973 as it included abortion in that right. We watched in 1992 as the Court, while upholding its own fabricated constitutional right to abortion, arrogantly declared that the American people must earn their legitimacy as “a nation of people who aspire to live according to the rule of law” by recognizing that the Court “speaks before all others for their constitutional ideals.”

We watched in 1993 as the Court ruled that governments need not demonstrate a “compelling interest” when restricting the free exercise of religion, and in 1997 as the Court overturned a provision in the Religious Freedom Restoration Act of 1993, a provision the purpose of which was to restore that “compelling interest” standard in free exercise cases. At the same time, the Court for the first time explicitly denied the authority of the people’s representatives in Congress to interpret the Constitution with any conclusive effect. We watched in 2000 as the Court outlawed school prayer at high school football games. We watched in 2003 as the Court fabricated a constitutional right to engage in homosexual sodomy—and, by implication, a host of other things. In 2013, we watched as the Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Finally, we have watched as a succession of federal courts have declared same-sex “marriage” bans in several states unconstitutional. Why is anyone surprised?

The enlightened elites have decided that it is illiberal and unprogressive to hurt the feelings of same-sex couples who want to marry and force Christians to cater their weddings, and the bakers and candlestick makers must now follow along quietly. We have allowed judicial interpretations of the Constitution to overpower the political process in the most vital areas of life. So long as we continue down this road, Anthony Esolen’s declaration in Crisis Magazine that “Democracy is Dead” will continue to be apropos. However, it should be remembered that, although there are cultural requisites for a healthy democracy (as Dr. Esolen’s article aptly points out), democracy is nonetheless a political form. So might one yet hope that it can be restored?

The first step in this restoration is the simple realization that the Constitution does not authorize judicial supremacy—the doctrine that the Supreme Court is the exclusive, ultimate and final authority on all constitutional issues. The Constitution authorizes judicial review only in a limited range of cases, and this power extends to none of the cases mentioned above in this essay.  Nor is judicial supremacy authorized by early Supreme Court decisions, despite the fictitious claims of progressives and others who support an activist judiciary. To put the point bluntly: We need to stop trying to convince federal judges that same-sex “marriage” is a bad idea. They won’t be convinced because federal judges represent enlightened elite opinion and the enlightened elites have already decided that same-sex “marriage” is a good idea. Rather, we must start trying to convince the American people that federal judges never had the constitutional authority to decide whether same-sex “marriage” is a bad idea in the first place. Since all such decisions are without constitutional authority and thus outside the law, it follows that the judges who make them are outlaws. We must stop being intimidated by the black robes and call them to account.

Once it has been determined that the national judiciary has overstepped its’ constitutional limits, as it did a little more than a century-and-a-half ago in the Dred Scott case (1856), it is a short step to the approach taken by Abraham Lincoln in his response to that decision: disrespect and disavowal of its binding effect on any save the parties to specific lawsuits. And maybe we shouldn’t respect such decisions even as to the parties to specific lawsuits, because our situation is worse than Lincoln’s in at least one respect. Whereas Lincoln’s problem was one specific decision (albeit with obviously momentous consequences), our problem is with a long train of decisions by an entire branch of the national government that has been allowed to run amok for several decades, deadening our democracy by lulling large segments of the population into the false belief that the Constitution is none of the people’s business.

Even worse, Congress itself has been deadened. In the late-1990s, I had the experience of testifying at a hearing of the House Judiciary Committee’s Subcommittee on the Constitution. The subject of the hearing was Congress’s role in constitutional interpretation, and its’ impetus was the Supreme Court’s decision in Boerne v. Flores (1997), which declared a provision of the Religious Freedom Restoration Act of 1993 unconstitutional (see above). It became abundantly clear during the course of the hearing, much to my astonishment at the time, that many of the representatives on the committee did not really believe that Congress had any role at all in constitutional interpretation. People on both sides of the aisle and issue simply had difficulty getting their minds around the idea that the Supreme Court might not have final, exclusive interpretive authority in all constitutional matters. So thoroughly have we been brought under the spell of the courts that even our elected representatives do not appear to believe they have the competence or authority to deal with constitutional issues.

Do we really believe that a handful of lawyers are best fit to solve our most fundamental constitutional problems? Actually, not even a “handful,” since on the marriage issue, which will probably be decided soon by a 5-4 vote on the Supreme Court, it will likely be one lawyer who decides the issue for the whole country. It is “We the People” who made the Constitution, and “We the People” who must preserve it against all who would attempt to capture and manipulate its words and phrases to serve their own private ends. It is understandable that same-sex couples would desire the legitimacy provided by the institution of marriage. But this desire is a private good that can be truly legitimized only if the American people as a whole freely decide to make it a public good. There is even more at stake in this controversy than the institution of marriage and religious freedom. Also at stake is the American democratic republic and its’ constitutional foundation.


  • Robert Lowry Clinton

    Robert Lowry Clinton is Professor and Chair Emeritus in the Department of Political Science at Southern Illinois University, Carbondale, and Adjunct Professor of Political Science at the University of Missouri, St. Louis. He is the author of Marbury v. Madison and Judicial Review and God and Man in the Law: The Foundations of Anglo-American Constitutionalism, as well as numerous academic articles and book chapters. In addition to scholarly journals, Dr. Clinton has appeared in numerous popular periodicals such as First Things, National Review Online, Public Discourse, and New Oxford Review.

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