Common Cents

Judicial Review

Ralph Murphy

(8/2015) The June, 2015 Obergefell vs. Hodges ruling by the US Supreme Court that same sex marriages are now legal in all states has been met with euphoria from gay rights groups and unbridled anger from its opponents. There is wide belief among legislators and members of the executive branch of government that their role in policy creation has been usurped by an unchecked judiciary. Even some Supreme Court justices recognize there is a clamor amid lawmakers. to assess the Constitutional power afforded that body in light of perceived excesses.

More than the mandate that same sex couples can marry is at stake here. The Affordable Care Act (ACA or Obamacare) was allowed to continue in a ruling the previous week allowing for tax breaks from the federal government to insurance buyers. It didn't spell out state or individual payment requirements and the law is being rewritten by Congress. Other issues over the years have been tolerated to include abortion in Roe vs. Wade, and Electoral College in Bush vs. Gore. Of concern now is the impact of two major and contentious, binding legislative decisions both being decided in about a week. That was a bit much for the citizenry and the fallout has been intense.

Wisconsin Governor Scott Walker demanded a federal constitutional amendment specific to the gay rights issue that "allow states to define marriage and strip the Supreme Court over the issue". Basically the status prior to the high court ruling. He labeled the ruling "judicial activism" an affront to First Amendment religious protection which often rejects such unions on moral grounds.

Walker's reproach was echoed by former, Arkansas Governor Mike Huckabee who labeled the gay rights mandate "legal tyranny". He went on to say the court employed "blatant, disturbing, disgusting examples of judiciary activism". He also bemoaned the decision as having created law "out of thin air".

Both respected politicians were joined by sitting justice Antonin Scalia who asserted the Supreme Court decision demonstrates that it "creates policy rather than serving as a neutral broker". He went on to add "Constitutional revision by an unchecked committee robs the people (of) fundamental freedom to govern themselves". He said the court was "pretentious and egoistic" in the issue and that "disciplined legal reasoning (yielded) to mystical aphorisms".

Article 3 of the Constitution brought into government use in 1789 touches broadly on the high court’s functions. Three short sections to include court permission to judicial power, scope of judicial power, and a treason specification are included, but there is no provision as to the size of the court or any possible challenge to its decisions by other government bodies. It has therefore evolved as "self policing" and, while contentious at times, has really drawn varied criticism for adopting "policy" or socio economic (often geographic) laws. Laws that reflect social values rather than serve as an "arbiter" to settle differences.

Right now if the Supreme Court makes a decision- as they've done in allowing gays to marry - the only way to challenge this is with a Constitutional amendment. There have been only 33 such amendments passed to the Federal legislature since 1789. Twelve of them weren't enacted into law for a variety of reasons. Mostly based upon state issues. Walker's idea to challenge the ruling would have a very tough time passing if history is an indicator- unless there was real social upheaval associated with the accord. A broader Constitutional amendment allowing for legislative and executive review of judiciary rulings may be what Justice Scalia and others are indirectly promoting as again the legal issues simply can't be challenged in conventional law.

Moral issues are dealt with routinely by religious organizations, but consensus can vary widely between regions and social groupings. To quantify morality in anything but biblical or scriptural terms for a coherent legal issue to high court arbitration is not impossible, but often contentious. Governor Walker's allusion to it allows the issue be broached, but no clear path forward beyond the fallout is evident. These include problems such as psychotherapy, disease, and social strife associated and unique to the liaisons and as such are quantifiably dangerous and should at least be discouraged.

The Court’s issue and concern for the subject of gay marriage cited in the 14th amendment is one for "equity" or fairness. Legal resolve routinely bans practices to include the demonstrated destruction associated with such activities. They could also apply here under normal circumstances, but again the Supreme Court cannot be challenged in existing statutes. It rarely happens- two rulings of extraordinary financial or social cost were introduced at the end of June. One has to wonder how much further the Court will go before it is challenged and checked. Time will surely tell.

Ralph Murphy is a former member of the CIA Headquarters Staff in Langley, VA.