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DOMA and Prop 8: Are the courts replacing democracy?

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

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