Marriage and the Courts, Bainbridge Style

A rather poorly thought-out post by Stephen Bainbridge on SSM, informative more for what Bainbridge doesn't mention than for what he does. Just to give you an idea of the approach:

One would hope that as gay marriage comes to be accepted, for example, that civil rights and anti-discrimination laws could not be used to sue priests who refuse to perform religious marriage ceremonies for same-sex couples.

This is pure Dobson Gang talking points. There is nothing under the law, or any proposed laws that I have heard of, that makes that scenario a possibility. I think the term is "obfuscation."

This seems to be Bainbridge's core idea:

Unfortunately, perhaps because they could not envision the extent to which modern judges would assert control over virtually all aspects of society and culture, the Founders failed to provide adequate accountability mechanisms. If you don’t like what the Supreme Court does, tough. All you can hope is that you can elect leaders who will eventually replace enough of those nine unelected old men and women with individuals whose views are more to your liking.

The Founders quite deliberately made the federal judiciary immune to the electoral process (at least in any direct way) because they felt, quite rightly, that since the judges were, among other things, charged with weighing laws against the Constitution, they should have the freedom from that kind of political pressure that would give the best chance of a fair and impartial decision. Unlike the legislature and executive, the judiciary is not subject to the whim of the people. I doubt very much it was lack of vision; I suspect it was much more a deep appreciation of the mob mentality.

As for judges taking control of virtually all aspects of modern life, it's because Americans will sue over every little thing. Let's face it -- if no one sues, nothing's going to the courts. It strikes me that blame is misdirected here. Just the least little bit.

He quotes Abner Mikva, in reference to the social/political results of Roe vs Wade"

The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they’ve lost their opportunity to slug it out.”

I think that's a misreading of forced-birth advocates as well as of the anti-marriage contingent. They're not angry because they've lost their chance to slug it out. They're angry because the decision was not in their favor. After all, they've been slugging it out ever since Roe was handed down. From this vantage, we know that the social conservatives as typified by Dobson, Wildmon and their ilk simply won't take no for an answer; compromise is not in their vocabulary. Look at their reaction to the failure in Massachusetts of a constitutional amendment, which happened within the process set out for the adoption of constitutional amendments: they're going to try again, if they can find the money to support the effort. Ironically, and typically for this faction, Peter LaBarbera in Illinois, when his petition for a referendum was denied because of the lack of legitimate signatures, went to those same courts to have the election laws of the state overturned. If that doesn't give you an idea of the mindset here, I don't know how to make it clearer.

Bainbridge also cites the opinion in the New York marriage case in support of his contention that important social questions should be removed from the purview of the courts. I've read that opinion, and it's a pretty weak one. (As in the federal Constitution, I strongly doubt that the New York constitution compels recognition of anyone's right to marriage.)

Yes, the court decisions in major social issues such as abortion rights and same-sex marriage result in controversy, mostly because those opposing those rights don't want to play by the rules. Bainbrige avoids the issue of limited sovereignty of the people, and also the fact that the legal processes brought into play here are part of the debate. Congress can override the Supreme Court, and has done so on numerous occasions. That's all part of the game. I think it's indicative of the opposition that their push is for a Constitutional amendment in an attempt to circumvent the debate entirely. That's where you see the political process being short-circuited, not by the courts doing their job.

(Footnote: I've seen this position -- the whim of the people school of political rhetoric -- taken to extremes in reaction to the failure of the Massachusetts amendment. The argument is that "it would have been better" to allow the people to vote. I'm unmoved. The only "better" I can see is a propaganda coup if the amendment had failed at the ballot box. And, given that it's a question that is high on the radar of gay activists and anti-gay activists, and no one else, the chances of failure were higher than I like. And, in that sense, there was an election in between readings of the proposed amendment in which that question was on the table. Opponents lost. Explain to me "better" in this context, unless you mean that social conservatives need to be beaten over the head again and again. I doubt that would work.)