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ELECTION 06: Marriage: the courts vs. the people

NASHVILLE, Tenn. (BP)–It has probably not escaped your attention that many in the media are portraying conservatives’ convictional consternation over the New Jersey Supreme Court ruling on same-sex “marriage” as demagoguery.

Suggesting that citizens in the states where constitutional amendments on marriage are on the ballot are being energized by this outrageously activist court ruling as a result of demagoguery and a get-out-the-vote ploy demeans millions of Americans’ deeply felt moral convictions. (It also ignores the fact that traditional marriage supporters had nothing to do with the timing or make-up of the court’s decision.)

It is not demagoguery to point out that for the second time in three years a state Supreme Court (Massachusetts being the first) has dictated to the people’s elected representatives and the people themselves that “gay marriage” or its equivalent become the law of their state, even if two-thirds or more of the citizenry are opposed to such action. What better illustration of “judicial activism” could one furnish?

In all fairness, the New Jersey court did not go as far as did the Massachusetts high court in November 2003, when it imposed “same-sex marriage” on the Bay State. The New Jersey Supreme Court, recognizing that to follow the Massachusetts court’s lead would prompt an enormous backlash, said the New Jersey Constitution required equal treatment for all.

Their decision, in part, reads: “Although courts can insure equal treatment for all, they cannot guarantee social acceptance which must come through the evolving ethos of a maturing society.”

Translation: We can read election results, and we know the people have rejected this issue in the 20 states where it has been on the ballot.

The New Jersey Supreme Court is telling the people’s elected representatives what laws they must write. It is worth noting that this is the same court that in a 7-0 ruling in 1999 decreed that Boy Scout troops could not exclude homosexuals from serving as scoutmasters, a decision overturned by the U.S. Supreme Court in 2000.

Democracy means government “of the people, by the people, and for the people,” not government “of the courts, by the courts, and for the courts.” The New Jersey Supreme Court’s action in dictating to the state’s legislative body can only be remedied by one action — an amendment to the state’s constitution.

The legal formula is simple: courts trump legislatures and laws, constitutions trump courts.

If New Jersey had the kind of amendment to its constitution that citizens in eight states (Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia and Wisconsin) will have the opportunity to approve on Nov. 7, then the New Jersey Supreme Court could not have assumed their dictatorial power and undermined the people’s right to determine their own social policies regarding marriage.

Following a lecture I gave at Harvard University in the spring of 2005, I was asked by a coed: “Dr. Land, you seem like a nice guy. Why would you want to interfere in the personal, private relationship of two people?”

I responded by asking how she ever got the idea that marriage is a “personal, private relationship.” Marriage is a social and civic institution with profound public and societal responsibilities, obligations, and consequences. That is why every society in human history has regulated severely who can get married to whom and under what circumstances. Societies give “benefits” to marriage that they do not give to other relationships precisely because of its profound impact on society, particularly when it comes to the rearing of children. Such “benefits” are not rights, but benefits conferred upon marriage because of its importance to society.

When the courts try to force “same-sex marriage” on Americans, their judicial overreach threatens the nation’s social fabric.

Even U.S. Supreme Court Justice Ruth Bader Ginsburg, the court’s most liberal member, has acknowledged that the judicial activism of Roe v. Wade (1973) made the abortion issue far more contentious than it would have been had its regulation been left to the people’s elected representatives.

The Civil Rights Movement was the most successful social revolution of the last half century because it was a legislative, rather than judicial, revolution. Dr. Martin Luther King Jr. changed hearts and minds. This was reflected in the Civil Rights Acts of 1957, 1960, 1964, and 1965, which were then upheld by the courts. It was the people’s elected representatives who penned the legislation because hearts and minds had been changed.

The only real exception to this is the Supreme Court’s Brown v. Board of Education (1954) decision. It reversed the infamous Plessy v. Ferguson ruling (1896), which had provided judicial cover for the horrendous Jim Crow laws.

If the proponents of “same-sex marriage” wish to succeed in gaining acceptance for their cause, they should follow Dr. King’s example and take their case to the people, not seek to ram their views down the throat of the American people through judicial imperialism.

The people, not the judiciary, have the right to determine what constitutes the institution of marriage.

I urge all voters to consider the facts, to exercise their right to cast their ballot, and to vote their values on November 7.
Richard Land is president of the Southern Baptist Ethics & Religious Liberty Commission. A condensed version of this column appeared in The Tennessean newspaper Nov. 2.

    About the Author

  • Richard Land

    Richard Land, D. Phil, is the Executive Editor of the Christian Post, having previously served as president of the ERLC (1988-2013) and president of Southern Evangelical Seminary (2013-2021). He also serves as the chairman of the advisory board at the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary.

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