Activist Judges Strike Again

Who says judicial activism is dead? The front page of Tuesday's New York Times makes it clear that judicial activism is dead in the same way that the era of big government is over.

One story informs us that Vermont's Supreme Court has ordered the state to guarantee the same protections and benefits to homosexual couples that it does to married heterosexuals. Another story carries the news that a federal judge has ruled that giving thousands of children taxpayer-financed vouchers to attend parochial schools violates the Constitution's "separation of church and state." A third story reports that New York state's highest court ruled that the Giuliani administration has gone too far in trying to restrict New York City's pornography businesses.

Far from forsaking activism, American courts, enforcing liberal relativism, are leading the parade to Gomorrah. Not one of these decisions has any support in the constitutions they invoke.

A clause of the Vermont Constitution states that government should be "instituted for the common benefit, protection and security of the people, nation or community." Whatever that 200-year-old language might mean, if indeed it is anything more than a general admonition about good government, the
18th-century drafters and ratifiers obviously did not intend to require homosexual marriage or its equivalent.

Courts have become quite adept at disguising their own moral judgments as mere obedience to law, even though the law may be entirely silent on the subject at hand. The Vermont court employed the hoary device of requiring that a statute serve a state interest strong enough to support the proscription. Why the people of the state are not entitled to decide that question for themselves in the absence of a clear limit on democratic choice is nowhere explained. The court's tactic leads the government attorneys into contrived speculations (e.g., the purpose of marriage is procreation) that the court has no difficulty finding inadequate to support "discrimination." Because the court misused the state constitution rather than the federal one to achieve its result, review by the U.S. Supreme Court is unavailable.

Federal Judge Solomon Oliver Jr. in Cleveland struck down the school voucher program enacted by the Ohio Legislature in 1995 as a violation of the federal constitution's "separation of church and state," a phrase that does not appear in the Constitution. It has been demonstrated over and over again that the First Amendment clause forbidding the "establishment of religion" was never intended to prohibit nondiscriminatory aid to religion. The first Congress, which proposed the First Amendment, also aided religion in ways that today's ACLU and the federal courts now consider clear constitutional violations.

The truth is that modern jurisprudence in this area is driven not by any possible meaning of the Constitution but by a desire to secularize society and by hostility to religion in general and to the Catholic faith in particular. The court stressed over and over again that parochial schools were involved. It should not be overlooked, however, that much of the determination to destroy voucher programs has less to do with religion, which provides a spurious constitutional cover, than with the desire of teachers unions to preserve their monopoly control and the perquisites of the educational bureaucracy that go with it.

New York City was driven to an artificial regulation of pornography by the Supreme Court's wildly expansive interpretation of the First Amendment's clause guaranteeing freedom of speech. The city law, framed as a zoning ordinance, banned operation of any business that devoted 40% or more of its floor space to pornography within 500 feet of a school, church, residential area or another pornography business. It is only within the past few decades that the Supreme Court has begun extending speech protection to pornography and even, in large measure, to obscenity. Prior to that, the free-speech clause was correctly understood as a protection for the dissemination of ideas, not for self-expression or sexual titillation.

None of these rights -- to homosexual marriage, freedom from religion in schools voluntarily chosen by parents, and the sale of pornography -- can in any real sense be called constitutional. All of them, however, are on the liberal agenda, and that is good enough for today's courts. The truth is that these are not constitutional rulings but moral edicts, and the morality enforced is a minority morality, one directly contrary to the morality a majority of Americans want to have enforced by statute. What, then, gives what these courts are doing any claim to legitimacy? The answer is, nothing.

Yet defenders of these laws cannot make the one real defense that should be open to them. It is obvious, for example, that New York City's law was clumsily cast as a zoning ordinance because its real objective was one that in modern constitutional jurisprudence dare not speak its name: morality. An opinion in the Vermont case neatly transformed a judgment about morality into one of "an animus against a class." With that transubstantiation, the law confining marriage and its benefits to unions between men and women was doomed. There was a time when judicial activism was thought to be a disease of the federal courts, and the Warren Court in particular. What we see in Vermont and New York, and in numerous cases elsewhere, is that activism is now raging in the state courts. That activism prevails in those courts, even though many of them are manned by elected judges, suggests either that the public is ill-informed about the shift in power from democratic institutions to authoritarian bodies or that there is a general weariness with democracy and the endless struggles it entails.

The desire to be done with democracy came through clearly when one Vermont justice said the court should not, as it did, give the state the choice of enacting "domestic partnership" legislation, but should order it to let people of the same sex marry. The majority, she said, sent the plaintiff homosexuals to "an uncertain fate in the political cauldron of . . . moral debate" in the Legislature. When moral debate is denigrated as a "political cauldron," we are well on our way to abdicating control of our culture and our morality to unrepresentative oligarchies.

Mr. Bork , a former judge of the U.S. Court of Appeals for the D.C. Circuit, is a fellow at the American Enterprise Institute.(See related letters: "Letters to the Editor: Are Activist Judges Only Liberals?" -- WSJ December 31, 1999)

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