Thursday, February 27, 2014

The Black-Robed Supremacy: How courts are making the most important decisions for us

The following is the first several paragraphs of an op-ed on the recent federal court ruling on same-sex marriage I submitted to the Louisville Courier-Journal yesterday:

Kentuckians should be greatly comforted by the recent decision by a federal judge overturning part of the state's Marriage Amendment: It relieves us of the uncomfortable burden of governing ourselves.

The decision in last week's case, Bourne v. Beshear, forces Kentucky to recognize same-sex marriages performed in other states. It did this by overturning the decision of Kentucky voters in 2004 that amended Kentucky's constitution to define marriage as between a man and a woman and to ensure that Kentucky does not have its marriage policy dictated by other states.

After being passed by elected lawmakers, the Marriage Amendment was approved by almost 75 percent of Kentuckians—more votes in favor than votes for and against any previous constitutional amendment. But the will of the people is becoming increasingly unpopular with what U.S. Supreme Court Justice Antonin Scalia has called the "black-robed supremacy": judges who see it as their role, not to interpret the law, but to pronounce it.

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5 comments:

KyCobb said...

Let's identify when this unconscionable interference in the people's will concerning the definition of marriage began: 1967, when activist judges, ignoring the will of the people of Virginia, struck down its ban on interracial marriage. To get back to the top of the slippery slope, before the courts start letting people marry their pets or their cars, we have to get Loving v. Virginia reversed so that the people can ban miscegenation again if that is their will.

Miyam said...

Judges have pronounced the law since the beginning of the U.S. judiciary. "It is emphatically the province and duty of the judicial department to say what the law is." That's from Marbury v. Madison, the 1803 U.S. Supreme Court decision, one of the most basic pronouncements. Judge Heyburn pronounced what the Constitution says, as he is required by Congress and his oath of office to do.

Rob M said...

How's it feel to be on the wrong side of history, Marty?

Martin Cothran said...

Rob M,

I see your into Whig history. How do you know what the "wrong side of history" is? Or the right side for that matter? Doesn't that require some perspective outside of history to judge such a thing? If so, what perspective is it?

Are seriously contending that whatever is happening now is automatically right? If so, couldn't someone in 1930s Germany have said the same thing about the time they were in?

Or maybe you were just issuing a cheap taunt with no thought behind it.

If so, nevermind.

Singring said...

'Are seriously contending that whatever is happening now is automatically right? If so, couldn't someone in 1930s Germany have said the same thing about the time they were in?'

Oh Robbie,

can't you see that legalizing gay marriage is like sticking jews into ghettos and euthanizing disabled people?

It's just one step shy of invading Poland...

I think I can clear a lot of this up by translating Martin's last few posts into plain English. When he complains:

'The decision in last week's case, Bourne v. Beshear, forces Kentucky to recognize same-sex marriages performed in other states.'

...what he's really trying to say is:

http://www.youtube.com/watch?v=_Q5FdzHaOuE