DOMA and Prop 8: Are the courts replacing democracy?

Bob Siegel Bob Siegel 5 Comments


Originally published by Communities @ Washington Times

SAN DIEGO, June 26, 2013 —Two of the most controversial Supreme Court decisions were announced Tuesday morning. Both were about same-sex marriage. Both raise a valid question that transcends marriage: Should the courts be deciding these issues at all?

First, in a 5-4 decision, a portion of the federal Defense of Marriage Act (DOMA) was overturned.

Justice Anthony Kennedy wrote the majority opinion:

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The Court’s handling of Proposition 8 displayed a much different kind of response. They chose not to decide the case based upon merits, but rather, a legal technicality. The governors of the State of California (Arnold Schwarzenegger, then later, Jerry Brown) refused to argue an appeal when a lower court overturned the new law. Instead, private citizen supporters of Prop 8 sought appeal. Therefore, the challenge to the Ninth Circuit Court of Appeals’ judgment in Hollingworth vs. Perry and the challenge to the lower court ruling by U.S. District Court Judge Vaughn Walker were both deemed invalid.

This time, Chief Justice Roberts wrote the majority opinion:

SEE RELATED: Same-sex marriage: The legal effect

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”

Translation: All it takes to overturn a democratically created law is for one plaintiff to complain, one judge to overturn the law, and one state governor to refuse to defend the will of the people on appeal.

Whatever salary is being earned by our Supreme Court justices to come up with these genius rulings, the amount is too much.

To anyone who thinks the Supreme Court has a perfect, exclusively authoritative, unchecked understanding of our Constitution, please recall just three words: Dred Scott Decision. In 1857, wise, insightful judges ruled that African slaves were property. That case alone should end all discussion about court being a final authority.

Nowhere in our Constitution does it say that the Supreme Court interprets the Constitution. The purpose of the Supreme Court is not to interpret the Constitution. The purpose of the Supreme Court is to enforce the Constitution.

In all likelihood, many readers are raising their eyebrows about now, even fellow conservatives who sympathize with public reaction against judicial activism. Certainly this observation is out of the mainstream at our present time in history.

If you asked most Americans, they would say it is indeed the job of the Supreme Court to interpret our original set of laws. So would most lawyers and certainly a good many judges.

Yet, some legal scholars would dissent from popular opinion. Others might answer delicately, as law professor and talk show host Hugh Hewitt did on a radio interview several years ago. Asked if the Constitution never intended for the Supreme Court to interpret, he answered, “It can be so argued” (The Bob Siegel Show 4-24-05).

Throughout history, majority opinion has often been wrong. Most people of the world accepted slavery for the greater balance of history (including, once again, the Supreme Court itself). And so, perhaps American citizens would be well served to temporarily ignore public opinion and instead examine the testimony of facts from the past.

The interpretation tradition began when Thomas Jefferson refused to install some justices John Adams had appointed before he left office. Since the judges were never inaugurated, Jefferson didn’t feel obligated to use them. His government was sued in a landmark case called Marbury vs. Madison (1803). Because this unusual situation had never come up in such a high level, complicated scenario, litigation turned to the Supreme Court, which ordered Jefferson, via his Secretary of State, James Madison, to appear before them and explain himself. Jefferson ignored them. Marbury (one of the justices spurned by Jefferson) referred to the Judiciary Act of 1789 as a basis for the court being able to issue such commands.

Ironically, the court, after first showing sympathy to Marbury, pronounced a contradictory ruling. It decided that the Judiciary Act was unconstitutional, because it gave the Supreme Court more power than the Constitution intended.

So even though the justices were sympathetic to Marbury, and insisted the law set up by Congress was on his side, they ultimately ruled against him by deeming that same act of Congress to be technically unconstitutional.

Marbury, according to the high justices, should have started with a lower court rather than the ultimate court in the land and therefore, the court could not issue the verdict that both they and he wanted.

 This decision may have been a political stroke of genius under the leadership of Chief Justice  John Marshall, who found a way to lecture and chastise his rival, Jefferson without giving the popular president an actual court order that he would certainly refuse to obey. In short, Marshal devised a clever strategy to save face by having his cake and eating it too.

Nevertheless, in calling an act of Congress unconstitutional for giving too much power to the court, this landmark ruling established a tradition about the Supreme Court telling us what the Constitution intended. How’s that for a slice of irony?

The story gets even better. Jefferson disagreed with the court’s new found powers, even though, in this particular instance, the ruling was personally convenient, as now, he did not have to appoint the justices. Jefferson feared that if this understanding of judicial power were accepted, it would be “placing us under the despotism of an oligarchy” (Thomas Jefferson, to William C. Jarvis, 1820 ME 15: 277).

Unfortunately, 1803 spawned a custom that we never quite shook. It established what is commonly called “case law.”  Law schools teach case law, but as you can see, it finds origin in a tradition that has taken on a life of its own.

Today we live in the debris of that fateful Marbury vs. Madison ruling. Not only the Supreme Court, but other courts along the ladder make decisions to overturn the will of the people or the laws of Congress.

As a result, DOMA, brought into law by two branches of government, has been partially stricken down by one branch of government.

And the will of some seven million Californians has been traded in for the opinion of one judge, democracy, hard at work. That’s seven million opinions not being tolerated for the sake of tolerance. Whatever a person’s view of gay marriage, they should find this a disturbing trend.

No disrespect is intended for the honorable profession of magistrates. The Supreme Court is our third branch of government with an important role to play. When unusual situations arise, it falls upon the court to apply our Constitution. That’s probably what many people mean anyway when they use the word “interpret.”

But it is a false idea that judges can legislate from the bench with unchecked power over the other two branches of government, free to overturn laws at will. Such usurping of authority was the farthest thing from the minds of our forefathers.

The Constitution is a clearly written document. It had to be. The authors knew a whole country would be governed by it. They did not wish to confuse us. They did not write in riddles or parables. Neither is it poetry or symbolism. You do not have to be a lawyer to comprehend the Constitution.  If you know how to read, you do not need anyone to explain its meaning.

Most people will challenge you for having such brass. But Thomas Jefferson will be on record agreeing with you. You are not in bad company.

This is Bob Siegel, making the obvious, obvious.

Bob Siegel is a radio talk show host and columnist. Information about his radio show can be found at


Comments 5

  1. “But it is a false idea that judges can legislate from the bench with unchecked power over the other two branches of government, free to overturn laws at will. Such usurping of authority was the farthest thing from the minds of our forefathers.”

    “As a result, THE VOTING RIGHTS ACT brought into law by two branches of government, has been partially stricken down by one branch of government.”

    I know you wrote DOMA where I wrote THE VOTING RIGHTS ACT, but there were TWO decisions, on back-to-back days, that showed the Supreme Court to be willing to substitute its judgement for that of Congress’. Why did you ignore the first one?

    What I found most concerning was that eight of the justices voted to overturn an overwhelming vote in Congress when it suited their political bias and chastised the court for doing the same when the result didn’t suit that bias. Only Kennedy was at least consistent; unfortunately, he was consistently activist.

    Any remaining doubt that the Supreme Court has become just as political as the other two branches of government were put to rest by these decisions.

  2. We’re not a Democracy. That’s what I used to hear my fellow REPUBLICans say to the DEMOCRAts.

    We democratically elect representatives who follow a constitution (state and federal). The important difference is that in a Democracy the masses can vote rights away. Under our system, those rights are protected by a constitution and laws are made by representatives rather than 50% + 1 of the vote.

    The DOMA/Prop 8 case has much that the right should be happy about. The Supreme Court refuses to take a case that was not appropriately represented rather than do something completely out of step and out of character of the Supreme Court simply to force their opinion on the public, their decision strengthened the power of the states, and they strengthened individual rights without damaging the rights of others (for example the religious). They took a very conservative approach when they chose not to trounce on the rights of individuals in order to protect the safety of the collective. All are points the right should be happy with.

    But now the right seems to want to go down the “will of the people” road as if we are a Democracy after years of fighting to remain a Republic. And some on the right are now doing it by invoking the intent of the Founding Fathers? I don’t know where the Founding Fathers would have stood on federal benefits for same sex spouses, but that’s mostly because there were no federal benefits or same sex spouses seeking those benefits in 1776.

    I do know that the Founding Fathers created a government where rights were not voted on and the majority did not rule, rather the majority picked their representatives. And the courts would not allow a law to stand that was unconstitutional no matter how many people voted for it. I know that because it was written down in the Constitution.

    What if the majority vote to ban guns? Or quarter soldiers? Or limit speech? Or define what a religion can be (and yours isn’t part of the definition)?

    We, on the right, are setting ourselves up nicely to look like complete and total hypocrites which is a sure way to lose voter support which is a sure way to continue to enjoy a minority position in the federal and state legislature. Let the Democrats play the “will of the people” victim card when the courts strike down their unconstitutional, big-government ideas.

    They’re good at it. They’ve perfected it. Let’s, instead, do what we are good at which is leadership and applying our conservative, small-government values to solve problems while maintaining the integrity of our form of government.

  3. The Constitution was created to protect the rights of the few from the will of the many. As were “checks and balances”, which you should have learned about in Poli Sci 101. So yes, the courts DO have the right to strike down laws that were voted into place by the will of the people … if they violate the constitutional rights of the few.

  4. Thank you, Steven. It’s embarrassing that an adult who fancies himself to be a master of the obvious doesn’t recognize that the Supreme Court — whose justices are nominated and confirmed by our elected leaders — does, in fact, have the authority to interpret our Constitution and overturn laws it deems to be in violation of these fundamental principles. Egads,. Basic civics.

  5. Always awkward for me to agree with Rachel, but she’s “spot on.” As were others.

    Right or wrong, the justices DO have the right — the OBLIGATION — to determine if a law passes Constitutional muster.

    Indeed, if they did their job right, they’d probably overturn at least 80% of the laws — at least on the federal level. Sadly, they are hesitant to strictly follow the Constitution these days.

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