What is your opinion when it comes to courts deciding the definition of marriage? Do courts have the power to make such decisions, or do you believe that protected institutions and the rule of law should be defined by the legislature?
You probably have a good idea by now how I feel regarding the same sex marriage debate, but I think it’s important to stress why. I firmly believe that such important issues must be decided in the legislature instead of the courts, and there are two main reasons for this opinion.
They have to do with checks and balances. In the United States, we have three separate branches of the government, each with its own unique powers. The three are never supposed to overlap, because one branch could then become too powerful. It is the Separation of Powers Doctrine that forbids courts from essentially creating laws. While court rulings are not technically considered “laws,” they do become the law of the land.
The second reason is that lawmakers are elected to power. They are therefore accountable to the people. They can be voted out of office if they create laws that the people do not agree with, do not find fair or just, and that do not pass Constitutional muster. In most cases, judges cannot be held to account or as easily removed. This is why judges may not engage in activism, or create what amounts to law, from the bench.
Since this is the way the system was designed, should courts be held to these standards, or is it okay for them to sidestep these checks and balances if they feel the issue is one of great importance? While some people claim that it is okay, especially to protect against perceived discrimination, I challenge those that defend judicial activism to give this more thought. Would you still agree with legislating from the bench if it were conservative judges forbidding same sex marriage or another pet cause? I think not, and that is one more reason why I believe we must hold all our courts to the same standards, at all times, on every issue.
How do you feel about it?