Today's Courier-Journal carries my editorial on how the legal doctrines being spun out of thin air by liberal judges are moving issues out of the reach of voters and into the hands of unelected judges and how conservative reasons for laws are now automatically considered unconstitutional. For those who are not subscribers, here it is.
Politics is a messy business. Thankfully, we have the federal courts to deliver us from it.
On Feb. 12, a federal judge struck down a part of Kentucky’s marriage amendment and in the process partially nullified the votes of 1,222,125 Kentuckians who voted in 2004 in favor of the traditional view of marriage — more than voted for and against any previous amendment on a Kentucky ballot.
In the ruling, Bourke v. Beshear, Justice John G. Heyburn struck down the part of Kentucky’s marriage law that allows Kentucky to determine its own marriage policy by not having to recognize same-sex marriages from other states.
The decision is one of an increasing number of court cases that nullify democratically enacted laws and referenda — or, as in this case, constitutional amendments — that had been placed on the ballot and ratified by voters.
The Bourke case, like similar cases which are systematically invalidating marriage laws in other states, forcibly takes marriage policy out of the hands of voters and their elected representatives and places it in the hands of unelected federal judges whose political opinions differ starkly from those of the general public.
In fact, on almost every social issue, from marriage to school prayer to abortion, policy is now being made in the least democratic of our branches of government: the federal courts.
Of course, the judges now deciding our policy issues for us claim constitutional warrant for their decisions. The trouble is that there is nothing in the Constitution they can actually point to. So they point to earlier decisions by earlier judges who claimed such warrant in an infinite regress that never arrives at any actual constitutional language that justifies their ruling.
In reality, the views of current courts are the result of an accretion of judicial doctrines with little relation to the Constitution they claim to interpret that has grown like barnacles on a ship. In cases such as those related to same-sex marriage, the judicial ship is now almost all barnacles.
Liberals have cheered this development and understandingly so: It largely benefits them. As issues are more and more frequently taken out of the democratic process and appropriated by judges, the findings of courts almost necessarily end up reflecting the views of the class from which its members are drawn. With liberal judges now in control of social issues, liberals don’t even have to argue their case anymore.
Social liberals, their views now determined by the prescriptive power of the courts, can pretty much do as they please. Conservatives, on the other hand, must go to the back of the bus.
So much for “fairness.”
All this has been accomplished by appointing to the courts people who have accepted the liberal conception of what can be counted reasonable and what cannot. The “rational basis” test, which several courts have at least claimed is the basis for their decisions on same-sex marriage, automatically counts out anything a conservative would recognize as a legitimate reason.
According to recent court rulings, tradition, custom, religion and morality itself cannot count as rational. This is something that is itself not argued for, but simply asserted. There is, in other words, no rational basis for the rational basis test as it is currently imposed by the courts
The decision in Bourke — and the decision in the Windsor v. The United States that struck down DOMA — are basically declarations that laws can only be justified for liberal reasons. Conservative reasons simply don’t count.
And complicating the situation is that those whose constitutional obligation it is to defend these laws and the rights of the voters who passed them are shirking their oaths of office. In Kentucky, Attorney General Jack Conway, after a period of reflection on whether he should do his job, decided to leave voters in the lurch by not appealing the Bourke case. His decision came despite the fact that the marriage amendment was part of the Constitution when he took the oath.
Judge Heyburn in an unusual part of his ruling — and Jack Conway in his press conference yesterday — addressed the very citizens they were complicit in disenfranchising, patted them patronizingly on the head and told them that they may not like it, but they must live with this new regime in which their views no longer matter.
And what of consequence can these citizens say, now that their power of saying anything of consequence has been taken away?