Political Science

Department Spotlight

As published in the Aug. 19, 2004, issue of The Seattle Times.

The Constitution and the Role of the Judiciary: Are judges assaulting marriage?

By Julia K. Stronks J.D. Ph.D.
Professor of Political Studies
Whitworth University

Earlier this month, King County Superior Court Judge William Downing ruled that our state Constitution prevents government from limiting marriage licenses to heterosexual couples only. Over the past few years, as judges in Hawaii, Vermont, Massachusetts and other states have grappled with this issue, I have read the same accusations over and over. Newspaper editors, commentators, and our President among others have complained about "activist, liberal judges" who are trying to "force a radical social agenda" on Americans who prefer to have rulings made by legislation rather than by court order.

As a lawyer and a political scientist who cherishes the Constitution, and as a conservative, married Christian who cherishes marriage, I can hardly stand to read these commentaries anymore. So, in true lawyerly fashion, I am writing my own.

The issue of same-sex marriage, the cause or origin of homosexuality, and the question of the government’s proper role in encouraging or endorsing marriage are here to stay. We will be debating and studying these issues for decades. This is our right and our responsibility in a democratic republic.

However, as we debate these things, it is critical that we do so with a full understanding of the role that judges play in a system of checks and balances.

The individual rights articulated in the U.S. Constitution and its amendments are few in number. They were established to protect citizens from the government. As the Framers of the Constitution put it, we must be protected from the problems that occur when the majority engages in "excesses of democracy."

Normally, in a democracy, the majority makes the rules. But in those few cases when rights are expressly articulated in the Constitution or are implied by the Constitution, the majority is not allowed to make rules that step on the toes of the minority. In a case where this happens, judges are supposed to exercise judicial review and declare the law or the government action to be unconstitutional. This principle, formalized by the U.S. Supreme Court in Marbury vs. Madison in 1803 and used by all federal and state judges since then, is what underlies the same-sex-marriage rulings in Washington, Vermont, Hawaii and Massachusetts.

The key issue in these cases is not whether same-sex marriage is a good thing or a bad thing. The question is whether the federal or state constitutions recognize marriage as a fundamental right. If marriage is a fundamental right protected by the U.S. Constitution, then the majority may not pass laws limiting who has access to this right unless the majority can prove that limiting the right is justified by a "compelling state interest." Compelling state interests are not just those interests approved by the majority. Rather, they are those instances where protecting the rights of the minority would so harm the public that limiting the minority seems to be the only right thing to do. An example of when a compelling interest of the state outweighs the interest of a person’s right is the limitation on the free speech of a person who causes pandemonium by yelling "fire" in a building where there is no fire. Free speech to yell "fire?" Yes, but the free speech right is trumped by the compelling interest of the state to protect the public safety. Another example often highlighted by those opposed to same-sex marriage is the desire of an adult to be married to a child. In this case the right to marry may be fundamental, but the compelling state interest in protecting minors trumps the adult’s right.
In every same-sex-marriage case that I have read, judges have painstakingly examined the law to determine if fundamental rights have been violated. Some judges asked if marriage is a fundamental right connected to the privacy right implied by several Amendments in the Constitution; other judges asked if protection against discrimination on the basis of gender or sexual orientation is a fundamental right. And judges spent a great deal of time determining if there was evidence to rule that the compelling interest test had been met.

We can debate whether marriage is a fundamental right; we can debate whether there is a compelling state interest strong enough to justify limiting our rights. But, to lambast judges for being elitist liberals who do not care about democracy is wrong. Both liberal and conservative judges have made mistakes in interpreting the Constitution in activist ways; both liberal and conservative judges have sometimes been careless in balancing fundamental rights against compelling interests. However, in most of the thousands of state and federal cases that I have read, judges try very hard to weigh evidence, listen to arguments on both sides, and make decisions that build on the decades of cases that have preceded them. This is what they are supposed to do.

Julia K. Stronks is an attorney and holds a Ph.D. in American government. She is a professor of Political Studies at Whitworth University, and author of the books Christian Teachers in Public Schools (Baker Books, 2000) and Law, Religion and Public Policy (Lexington, 2002).

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