Marriage: The Courts vs. the People

The Tennessean’s portrayal of conservatives’ convictional consternation over the New Jersey Supreme Court ruling on same-sex marriage as “demagoguery” is shameful.

To depict an accurate assessment of what the outrageously activist New Jersey court ruling will do in energizing citizens of other states pondering constitutional amendments on marriage as demagoguery and a “political ploy” demeans millions of Americans’ deeply felt moral convictions.

It is not demagoguery to point out that for the second time 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?

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 Tennesseans will approve overwhelmingly on November 7, despite the Tennesseans’s advice, 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 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 has acknowledged that the judicial activism of Roe v. Wade made the abortion issue far more contentious than it would have been had its regulation been left to the people’s elected representatives (“Speaking in a Judicial Voice,” 67 New York University Law Review, 11185 (1992).

The Civil Rights Movement has been the most successful social revolution of the last half century because it was a legislative, rather than judicial, revolution. Dr. King changed hearts and minds. The people’s elected representatives passed the Civil Rights Acts of the 1950s and 60s, which were then upheld by the courts.

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 (1896) decision, which protected the horrendous Jim Crow laws.

If the proponents of same-sex “marriage” wish to gain 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, which they will do on Nov.7.

This article was originally published on November 2, 2006.


Dr. Richard Land is president of The Ethics & Religious Liberty Commission, the Southern Baptist Convention's official entity assigned to address social, moral, and ethical concerns, with particular attention to their impact on American families and their faith.