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  • Judging Marriage: What Is the Proper Role of the Courts?

    Yesterday’s decision by the Ninth Circuit striking down California’s Proposition 8, which amended the California constitution to define marriage as a legal institution involving one man and one woman, has reignited the public debate about judicial activism.

    When courts weigh in on such controversial and political topics, it is necessary to stop to consider a larger question: What is the proper role of the courts?

    Explaining the appropriate interplay between the branches of government and the proper methods of interpretation that judges should employ when determining whether a law is constitutional, Heritage’s Robert Alt answers the question in the latest addition to Heritage’s Understanding America series.

    The Founders sought to protect liberty by separating powers in the federal government. By giving each its own authorities to exercise and defend, the branches check each other and ultimately prevent each other from usurping power. It is the duty of the courts to interpret the law at issue in the case before them. In Marbury v. Madison, the Supreme Court established judicial review, the authority to declare a law void if it is contrary to the Constitution. However, Alt notes that

    the Marbury Court did not claim that the courts possessed the exclusive or supreme authority to interpret the constitutionality of laws. The other branches of government are also legitimately responsible for interpreting the Constitution.

    This is how our government is supposed to work. But over time, the Supreme Court has grabbed power by declaring that its decisions are the supreme law of the land. Regretfully, the other two branches have willingly acquiesced to such claims of judicial supremacy.

    The federal courts have not only seized power; they have also changed how judges approach one of their fundamental duties: the interpretation of laws. The proper role of a judge is a modest one. Alt outlines the appropriate method of interpretation:

    In determining whether a contested law is consistent with the Constitution, judges act within their proper judicial power when they give effect to the original public meaning of the words of the law and the Constitution.

    This philosophy means that that judges abiding by their constitutional duties will, at times, uphold laws that some may consider bad policy and strike down laws that may be considered good policy.

    Yet in recent decades, some judges have chosen to engage in judicial activism by deciding cases according to their own policy preferences rather than applying the law impartially according to its original public meaning. They have justified their decisions through such free-wheeling, unbounded, “I do what I want” theories as “living constitutionalism” and the selective imposition of foreign law when the outcome they desired did not comport with the law’s original public meaning.

    The courts, led by activist judges, have increasingly intervened on questions properly decided by the other branches or the states, thus undermining the ability of the American people to engage in true democratic debate within federal and state legislatures. It is not surprising, then, that the public increasingly brings its grievances directly to the courts rather than through the elected branches of government. But the solution lies in the hands of the people, who should demand that candidates for office—particularly the President, who appoints federal judges, and Senators, who confirm federal judges—appoint and confirm only those judges who will rule based upon the words and original public meaning of the Constitution.

    Posted in Featured [slideshow_deploy]

    5 Responses to Judging Marriage: What Is the Proper Role of the Courts?

    1. Michael Land says:

      Throughout time and across cultural lines, marriage has been a spiritual bond between a man and a woman. It is, in its very essence, a religious rite. Therefore, the courts should have nothing to do with it. By attempting to regulate marriage, they violate their own distortedview of the "separation clause." Marriage should be left to the religious community to initiate, govern, and terminate when necessary.

    2. Michael Land says:

      Throughout history and across cultural lines, marriage has been a religious institution. It is the spiritual bond between a man and a woman, and always has been. Since it is a religious matter, the government overreaches its constitutional authority whenever it attempts to license, incentivize, or otherwise govern it. The courts have no business in the mix.

    3. Carolyn Alder says:

      Yes! Thank you for clearly explaining the problem and the solution.
      Thank you for linking to "What is the Proper Role of the Courts" an excellent explanation of the usurpation of the courts.

    4. Gary Kelly says:

      What progressives and the despotic branch have successfully accomplished is what "We the people" have allowed them to get away with and avoid. So let me ask, what is the basis, as set by our Founders, for how laws and "Rights" are to be "entitled?" Is it not "the Laws of Nature and of Nature's God?" If you agree, are you prepared to challenge progressives as to what their new and improved wisdom is that they use to justify violating that foundation? What is their foundation for determining how rules and boundaries are set if not "the Laws of Nature and of Nature's God," as declared in America's Founding Document? Is it any wonder then, that the despotic branch is so brazen as to even ignore the will of the majority of voters?

    5. MarkV says:

      Though I greatly appreciate the post, it seems so inadequate and missing the mark on the most important point to be made. The Preamble of the California State Constitution reads thus:

      “We, the People of the State of California, grateful to Almighty God for our

      freedom, in order to secure and perpetuate its blessings, do establish this


      It is ‘We the People’ who established the government, and therefore it is ‘We the People’ who are the overriding and final authority for any/all changes! That means that there should not be an article about “the proper role of the courts” because they are in a realm where they have no authority. Period.

      There can be unconstitutional laws or actions by the Government or Government officials because they are the representatives of “We The People”. They have the power to represent us because it is “We The People” who having created the government de jure gave the legislative, executive, and judicial branches the right to rule us! Any representative who misrepresents us based on the rules of the Constitution that we gave them can be declared “unconstitutional” by the courts based those rules and standards we created. HOWEVER it is impossible and illogical for authoritative body of ‘We The People’ who created the powers from which they make, legislate, and enforce those laws to create something unconstitutional! Our representatives are representatives of ‘We the People’ and thus make decisions on our behalf. Our judges have their position and make rulings based on decisions ‘We the People’ created, either by vote directly or through our representatives.

      A negative decision by judges in these cases set horrendous precedent in overriding ‘We The People’ and fundamentally forever altering our ability to change our government. This simple decision of the Ninth Circuit Court has declared us beholden to the State! This decision says, regardless of what side of the aisle you are on, this decision emphatically declares “The Voting Voice of the People Has No Weight.” We The People’ have no right to such legislation.

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