The voters in Louisiana, following the lead of several other states, voted
this fall to not allow homosexual "marriage." Obligingly, within a very short
period of time, a judge declared this to be unconstitutional.
I say "obligingly" because for many years people pushing for social change have
known that, if they shop around a little, they can find a court that will give
them just about anything they want. We have in effect two different, even
opposed, governments - that of elected officials answerable to the voters and
that of judges who are beyond anyone's control except that of judges at a higher
During the election season, polls showed that people usually mentioned the war and
the economy as the issues that concerned them most, which is not surprising but is
misleading, because I think most people do not fully understand how the judiciary
functions and what great effect it has on national life. When courts hand down
unpopular decisions people are outraged, but they seldom seem to ask themselves
how that came about.
Polls show that an overwhelming majority of people oppose homosexual "marriage"
and partial-birth abortion and think religion should play a major role in public
life, to take only some of the obvious issues. Over half the electorate should
now be classified as pro-life.
But that is precisely the point, say the defenders of the courts. The people
simply cannot be relied upon to do the right thing, thus we have to have
unelected guardians who correct the people's ignorance. Liberals who are
passionate about what they consider undemocratic elements in our system, and talk
continuously about giving more power to the people, here take the exactly
opposite position. The justification for all-powerful judges simply comes down to
the fact that the people really cannot be trusted.
Of course the rationale for all this is the Constitution, the fact that the Bill
of Rights exists to prevent a majority from oppressing minorities. The fallacy is
the courts' claims that they have "found" a right to abortion or homosexual
marriage in the Constitution and that the Constitution decrees a secular society.
This is as blatant an exercise of power as any king ever thought of, government
not by law but by decree -- "the law is what the judges say it is."
In the coming election it is not clear how much the main candidates actually
differ over the war in Iraq, and it is always doubtful how much any president can
do about the economy. Thus I think that, especially for religious believers, the
future of the courts ought to be the primary consideration. The war will
eventually end, the economy will continue to have its ups and downs, but changes
decreed by courts in the very fabric of social life will endure for many decades.
The Supreme Court had been divided along a 5-4 knife edge for some time, with the
"swing votes" going now one way, now another. It is reasonable to assume at least
three new appointments during the next presidential term, and the character of
those appointments will have immense effect on national life.
To mention only the most obvious, there will probably be court cases over
homosexual marriage, abortion, human cloning, the role of religion in public
life, suicide, euthanasia, and the rights of parents over the education of their
children. If the courts are remade in a permanently liberal way, the "culture
wars" will be over and the moral and religious beliefs of the majority of
Americans will have been permanently excluded from public life. In the coming
election no issue is more important than that.
Dr. James Hitchcock, professor
of history at St. Louis University, writes and lectures on contemporary
Church matters. His column appears in the diocesan press. He is the author
of several books, including The Recovery of the Sacred, What is Secular
Humanism?, and Years of Crisis: Collected Essays, 1970-1983.
Princeton University Press just published his two-volume history of the Supreme Court,
The Supreme Court and Religion in American Life:
The Odyssey of the Religion Clauses (Vol. 1) and
From "Higher Law" to "Sectarian Scruples"
(Vol. 2). He is also a regular contributor to many Catholic periodicals, including
Catholic World Report.
This article originally appeared in October 2004 on the Women
for Faith & Family website. It is reprinted by permission of the author.