Slouching Towards Gomorrah (19 page)

Quite recently, two federal courts, a state court, and the Supreme Court demonstrated their powers, their contempt for the electorate, the direction in which they intend to drive the country, and why the abuse of judicial power has become intolerable.

The Ninth Circuit Court of Appeals found a right to assisted suicide in the federal Constitution. The fascination with death as a right began elsewhere in the culture but swiftly found allies in a modern liberal judiciary. The decision in
Compassion in Dying
v.
State of Washington
³⁶
is instructive not only about our intellectually corrupted judiciary but about what is happening to the broader culture. The state enacted a statute making it criminal knowingly to aid another person in attempting suicide. The statute was challenged in court as a violation of the liberty and of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution.

The district court ruled for the plaintiffs on both grounds. The Court of Appeals for the Ninth Circuit reversed, sensibly finding that the right to assisted suicide, whose presence in the Constitution had never been suspected in over two hundred years, did not exist. The Court of Appeals, however, decided to rehear the case
en banc
, eleven judges sitting to decide the law of the circuit. The
majority opinion is a model of judicial lawlessness partially hidden by obfuscation. The court began by noting “the compelling similarities between right-to-die cases and abortion cases.”
³⁷
It need hardly have gone on, wasting dozens and dozens of pages. When a liberal says something is like abortion, we know that something, whatever it is, is protected by the Constitution. In fact, this opinion, in its intellectual dishonesty, its pretense that what it is saying relates to law, bears an uncanny resemblance to
Roe
v.
Wade.
Like Roe, it undertakes a survey of historical attitudes, in this case towards suicide. We learn about the Greeks, the Romans, the early Christians, English common law, the American states…none of it of the slightest relevance to the case. We are then informed about polling data and current social attitudes, again of no relevance to the meaning of the Constitution.

Eventually, we get to the interest in liberty under
Casey.
Here the Ninth Circuit repeats and relies upon the fatuities of the joint opinion there:“[T]he most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” If that seems fog-filled, vapid rhetoric intended to put the readers mind to sleep, the court at once brought its notion of intellectual rigor to bear: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Oh, that explains it. One would think that grown men and women, purporting to practice an intellectual profession, would themselves choose to die with dignity, right in the courtroom, before writing sentences like those. They mean nothing and were intended to mean nothing. They were intended, through grandiose rhetoric, to appeal to a free-floating spirit of radical autonomy. Those words illustrate the anti-intellectualism that suffuses constitutional law as a consequence of modern liberalism. Being a mood rather than a philosophy, modern liberalism cannot be other than anti-intellectual.

In a subsequent case, the Second Circuit Court of Appeals found a right to die under the equal protection clause, reasoning that since terminally ill patients had a right to refuse treatment, which is effectively suicide, there is no sufficient state interest to prevent a terminally ill patient, who is not on treatment whose withdrawal would be fatal, from obtaining drugs to terminate life.
³⁸

Meanwhile, the Supreme Court of Hawaii ruled under the equal protection guarantee of the state constitution that Hawaii’s statute restricting marriage to the union of a man and a woman “is presumed to be unconstitutional.”
³⁹
This presumption can be overcome, the court said, only if the state can show that the statute “is justified by compelling state interests.” Statutes almost never survive that test, and it seems only a matter of time before the Hawaii court creates a right to same-sex marriage. Since a ruling of unconstitutionality would be based on state law, no federal court would have jurisdiction to review it.

Though a large majority of Hawaiians as well as citizens of other states oppose homosexual marriage, the likely outcome of the Hawaii case may very well become the law of every state in the union. Article IV, Section 1 of the United States Constitution states: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; and the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The first part of that sentence almost certainly means that, if the Hawaii court rules as expected, other states must accept marriages between homosexuals performed in Hawaii. The Supreme Court has previously held that a state must accept a divorce performed in another state although the law and the policy of the objecting state prohibited such divorces. Homosexuals presumably could marry in Hawaii and settle in Utah as spouses no matter what the citizens of either Hawaii or Utah thought about the matter. The only way of avoiding this outcome lies in the second part of the sentence which says that Congress may prescribe the effect of a state’s acts, records, and proceedings. The Supreme Court might uphold congressional legislation stating that a Hawaiian same-sex marriage does not require other states to accord that marriage legitimacy in their territories. The Court’s response is in some doubt because it has recently shown a tendency to view homosexuality as a matter of required moral indifference under the Constitution.

In
Romer
v.
Evans
⁴⁰
the United States Supreme Court struck down, six to three, the Colorado constitution’s provision that homosexual, lesbian (which is homosexual), or bisexual status
should not entitle any person to claim quota preferences, protected status, or discrimination. This meant only that, notwithstanding local ordinances prohibiting discrimination on the basis of sexual orientation, private persons and institutions remained free to find homosexuality morally objectionable. Thus, a woman with a room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. No jurisdiction within Colorado could require that homosexuals be given the protection from private discrimination that racial minorities are afforded. The Supreme Court held, nevertheless, that the state’s decision to withdraw this special protection, which it was not required to give in the first place, was motivated only by “animus” and so could not stand under the rationale of the equal protection clause. Homosexuals were, the Court said, uniquely disfavored because they could not win protected status through local elections unless they first won a statewide election to remove the constitutional provision in question.

That is a very odd rationale, or rather it is no rationale. Moral objection to homosexual practices is not the same thing as animus, unless all disapprovals based on morality are to be disallowed as mere animus. Modern liberalism tends to classify all moral distinctions it does not accept as hateful and invalid. Moral views about sexual practices are particularly suspect. As for the claim that homosexuals are uniquely burdened because they cannot pass the laws they want without changing the Colorado constitution, that burden is imposed on various groups by every constitutional guarantee of freedom. Those who want to prohibit speech advocating law violation or violence cannot attain their end without amending the First Amendment. The First Amendment also stands in the way of those who would like to vote for an established church in their home state. All constitutional prohibitions of certain types of laws are subject to the same attack the Supreme Court levelled at Colorado’s provision. The majority did not even mention its prior decision that homosexual conduct is not a constitutional right, but it is well on the way to holding that it is. If homosexuality may not be discouraged by state constitutions, it is difficult to see how the provisions of various state constitutions banning polygamy can stand. They can’t as a logical
matter, but the Court (like modern liberal culture) is not as solicitous of polygamy as it is of homosexuality.

There is no logical or constitutional foundation for the majority’s decision in
Romer
v.
Evans.
The decision is an unsupported victory for homosexual activists, with whom the Court evidently sympathizes. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a “rather modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of the laws…. [The Courts decision] places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”
⁴¹
He concluded with the just observation that the Colorado provision “was an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. [It] is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will.”
⁴²
That is just what the dissent said of the majority’s decision in
Roe
v.
Wade
, and the condemnation was correct in both cases, as it would be in dozens of other decisions in which the Court, without authority in the Constitution or any law, has forced Americans to adopt the Court’s view of morality rather than their own.

As Lino Graglia, a professor of law at the University of Texas, put the matter, “the thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum.”
⁴³
That is exactly right, and the question is what, if anything, can be done about it.

Graglia points out that changing the behavior of the Court through appointments is a failed tactic. Republican presidents have appointed Justice after Justice with the avowed intention of changing the Courts direction. That has not worked. Most of those appointed turn out not to be restrained or start that way but then, having no firm judicial philosophy, migrate to the left. Presidents
Reagan and Bush, who quite deliberately tried to bring the Court back to a judicial rather than a political role, had five appointments, three of whom voted to retain
Roe
v.
Wade.
Now that Bill Clinton has made two appointments, the Court is certain to be activist on the cultural left well into the next century.

Any more serious efforts to limit the powers of the courts will run into the familiar refrain that this would threaten our liberties. To the contrary, it is now clear that it is the courts that threaten our liberty…the liberty to govern ourselves…more profoundly than does any legislature. Any reform effort must contend with the sanctity the courts have attained, not least through their own rhetoric. A federal district judge suppressed evidence and allowed drug dealers to go free on the theory that flight was a rational response to the sight of the police since the residents in that neighborhood view the police as “corrupt, abusive and violent. “The evidence of guilt that the judge suppressed was overwhelming. When political leaders denounced the ruling and the judge, four members of the court of appeals issued a statement saying that political attacks on the ruling “threaten to weaken the constitutional structure of this nation,” and “These attacks do a grave disservice to the principle of an independent judiciary and, more significantly, mislead the public as to the role of judges in a constitutional democracy.”
⁴⁴
For sheer chutzpah that is hard to beat. It is the judiciary’s assumption of power not rightfully its own that has weakened, indeed severely damaged, the constitutional structure of the nation. It has been the judiciary, and not its critics, that has misled the public as to the role of judges in a constitutional democracy. Harsh criticism by political leaders of outrageous judicial decisions is a legitimate and necessary response. That will not be enough, however, to restore the proper balance between the branches of government and between the states and the federal courts.

Conservatives often argue that the situation can be cured by Congress removing the jurisdiction of the federal courts in classes of cases where the courts have clearly exceeded their legitimate powers. There is no comfort to be found in that response, however. Article III, Section 1 of the Constitution leaves it to the discretion of Congress whether to create any courts below the Supreme Court. It is usually thought that congressional discretion to create or not create inferior courts means that Congress could
deprive those courts of all jurisdiction or of jurisdiction over particular classes of cases. That would solve nothing, however, since such cases would continue to reach the Supreme Court on appeal from state courts. The argument then turns to the statement in Section 2 that, as to most types of cases, the Supreme Court “shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” Surely, it is argued, this means that Congress can deprive the Court of jurisdiction over cases involving abortion or flag desecration or assisted suicide or whatever else Congress deems necessary to rein in a runaway judicial branch.