Martin Cothran: Ky. gay-marriage ruling a case of judiciary usurping voters' say

February 28, 2014 

Martin Cothran

Martin Cothran is policy analyst for the Family Foundation of Kentucky.


Kentuckians should be greatly comforted by the recent decision by a federal judge overturning part of the state's marriage amendment: It relieves us of the uncomfortable burden of governing ourselves.

The decision in Bourke v. Beshear, forces Kentucky to recognize same-sex marriages performed in other states.

It did this by overturning the decision of voters in 2004 that amended the state constitution to define marriage as between a man and a woman and to ensure Kentucky does not have its marriage policy dictated by other states.

The amendment was approved by almost 75 percent of Kentuckians — more votes in favor than votes for and against any previous constitutional amendment.

But the will of the people is becoming increasingly unpopular with what U.S. Supreme Court Justice Antonin Scalia has called the "black-robed supremacy": judges who see it as their role, not to interpret the law, but to pronounce it.

This case is only the most recent example of federal judges invalidating democratically adopted laws in the name of judicial doctrines slowly taking us further and further from the original intent — and the plain words — of our country's Constitution.

As Scalia pointed out in his dissent in United States v. Windsor, the case invalidating the federal Defense of Marriage Act last year that is quoted as authority by Judge John G. Heyburn in the Bourke case, our government was formed of three branches, "perfectly coordinate by the terms of their common commission." Quoting the Federalist Papers, Scalia points out that no one branch could "pretend to an exclusive or superior right of setting the boundaries between their respective powers."

And yet this is exactly what courts have done: They have slowly encroached on the legislative and executive branches, which are closer to the people.

The Bourke case adds its voice to the chorus of judges announcing that American citizens no longer need to trouble themselves with self-governance: They are the experts, and they can do the governing for us. On issues like abortion and same-sex marriage, federal courts are now in almost full control.

In the process of announcing that they are protecting the rights of this or that special-interest group, judges let the rights of voters themselves slowly slip away. The only people who don't seem to deserve protection are, as Scalia put it, "the people in 'we, the people.'"

Voters, given the power in our country's founding documents to decide such issues for themselves at the ballot box, have now, with decisions like the Bourne case, been disenfranchised.

With such issues having been taken out of their hands, they must now console themselves with loitering about the steps of our temples of justice, awaiting the latest judicial decree.

And political liberals, who pose as the champions of enfranchisement, cheer this process on. And why not? They are the beneficiaries.

Members of the judiciary are compromised almost exclusively of a Brahmin caste that sees society through the lens of the liberalism that characterizes their class.

Having to test the arguments for the policies they see as "progressive" through the debate and discussion that characterize the democratic process is troublesome and time-consuming — and, let's face it, demeaning. Surely it is unfair to demand that the Mandarin class that now dictates social policy in this country should have to get their hands dirty in such a way when they can simply issue a proclamation.

How much more dignified it is to simply streamline the democratic process by dispensing with it.

Martin Cothran is policy analyst for the Family Foundation of Kentucky.

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