In June 2003, the U.S. Supreme Court ignited our most recent culture war when it discovered a constitutional right to sodomize (Lawrence and Garner v. Texas).  The Massachusetts Supreme Court then threw kerosene on the fire by finding that its constitution mandated “gay marriage” (Goodridge v. Department of Public Health).  Americans from San Francisco to New York saw glowing same-sex couples exchanging vows in open violation of state laws, and Americans didn’t like it.  The fire, on Election Day, consumed the Democrats and the homosexuals.  The homosexuals immediately understood they had gone too far: “There is hurt, there is bewilderment, there is trauma,” said Matt Foreman, the executive director of the National Gay and Lesbian Task Force.  “Let’s not pretend that it doesn’t feel like we are all walking targets, more than ever, because it does feel that way.”  Oliver Stone worried that his movie starring a bisexual Alexander the Great might get caught up in the flames.  “I’d be naive not to be concerned.  I didn’t know there would be a parallel situation going on.”  Neither did John Kerry.

Has the imperial judiciary also gone too far?  Has the long exercise of untrammeled power made the Supreme Court careless?  Has the country lost her patience with the use of the judicial process to enact a moral agenda?  The Bush administration campaigned against the Court, promising to rein in “activist judges.”  If the Court has been casually provoking the country, perhaps it should be chastised.  Let’s see if the Bush administration has the power to deal with it.

The U.S. Supreme Court, in the Lawrence decision, which struck down a Texas antisodomy law, found that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”  Homosexuals are “free as adults to engage in the conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.”  Since the Supreme Court conceded Texas was not enforcing her law, experienced Court watchers did not understand why the Court had taken up such an incendiary issue.  The New York Times’ Linda Greenhouse suggested, in the University of Virginia’s Henry J. Abraham Lecture (April 2, 2004), that perceptions can change overnight “on the basis of personal experience and direct observation.”  To adhere to its precedent—the Court had upheld Georgia’s antisodomy law in 1986—“would have been to negate the way a majority of the court now sees the world, and the way a majority of the justices wanted the Court to appear in the world’s eyes.”  It was a matter of image.

In November 2003, the Massachusetts Supreme Court found that the Massachusetts state constitution, dating to the Pilgrims, required the Commonwealth to provide “gay marriage”: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.”  (No rational reason?)  The Massachusetts court gave the state legislature six months to pass an appropriate law, but the legislature failed, authorizing only “civil unions”: “It is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second class status,” said the Massachusetts Supreme Court on February 4, 2004 (Advisory Opinion on Senate No. 2175).  The court concluded:

That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups.  That such prejudice exists is not a reason to insist on less than the constitution requires.

The ruling set off a flurry of “gay weddings” across the country.

Former President Clinton, speaking after the November 2004 election, told Hamilton College students that “the gay marriage issue was an overwhelming factor in the defeat of John Kerry.”  Newsweek reports that Kerry refused Clinton’s advice to make a strong anti-“gay-marriage” speech.  Kerry and the Democrats constructed a values wall to separate themselves from the voters.  Some exit polls support Clinton’s remark, finding that the most important issue to voters (22 percent) was “moral values,” which ran ahead of taxes, education, Iraq, terrorism, the economy, and healthcare.  “Moral values” looked a lot like a proxy for “gay marriage” and partial-birth abortion—80 percent of those choosing it as their most important issue voted for President Bush.

On Election Day, 11 states voted on amendments to their state constitutions to ban “gay marriage.”  All passed with large majorities.  The margins ranged from a high of 86 percent in red-state Mississippi to lows in blue-states Michigan and Oregon of 59 percent and 57 percent, respectively.  Ohio, which teetered all night between red and blue, passed the “gay marriage” ban 62 to 38 percent, which almost certainly enabled Bush to carry the state.  Homosexual-rights advocates told the New York Times that they expected to lose, with the possible exception of Oregon, but were “stunned” by the “depressingly large” margins of loss.  Now, homosexuals are reconsidering their strategy of using the courts to secure rights.  Said one, “The consequences—the risks—of losing are great.  And we’re unprepared for the consequences of winning.”

The new strategy of homosexual-rights advocates is to attempt to persuade people of their position.  They are willing to try a little democracy—which is, of course, exactly what they should do.  The homosexuals learned a lesson that the Supreme Court has refused to acknowledge for 50 years: Court intervention in culture-war issues does not settle anything.  The Court sets fires; it does not put them out.  Abortion, affirmative action, prayer, and the role of religion are more contentious matters today than when the Court took control of them.  And, of course, the litigation never ends.  Only the political process, with its debate and compromise, provides a democratically sustainable solution.

Has the imperial judiciary walked away from this fire unsinged?  Maybe not.  An A.P. poll taken after the election shows that six out of ten Americans no longer believe that judges should have life tenure.  One cost of injecting the courts into political issues is that the American public is increasingly inclined to view judges as political players who, therefore, do not deserve life tenure.  The solution, however, is not to make judges more politically accountable for the fires they start but simply to take away their box of matches.  The Bush administration has a remarkable opportunity to do just that.

First, the administration should forget the plans it has announced.  Appointing conservative judges is hard, slow, and—if history is any guide—disappointing.  Republican Presidents since Richard M. Nixon have been promising to do that, and we now have “gay marriage,” which, we can safely say, is not what the voters who elected those presidents had in mind.  It is fine to appoint conservative judges, but, once appointed, they take on the bias of the institution.  Justice Stephen Breyer recently told a Harvard audience: “In my experience, most judges approach and decide most cases, including constitutional cases, quite similarly.”  Judges, particularly lower-court judges, believe they should follow past decisions, and they should—they are not legislators—but the problem is that now we have 50 years of awful Supreme Court decisions.  For example, in late November 2004, a federal appeals court held that, since the U.S. military discriminates against homosexuals, Yale Law School could bar military recruiters from its campus without fear of losing federal funds (Forum for Academic and Institutional Rights v. Rumsfeld).  Conservative judges can help some, but only very gradually.

The Bush administration should also forget its plan to push for a constitutional amendment to ban “gay marriage.”  Such an amendment is wrong in theory, because the states should decide the issue; and is a waste of time unless the administration has 66 votes in the Senate—which it does not have and is not going to get.

The administration’s announced plans, in short, will not do much to get the courts out of the culture wars; the problem, however, is easily solved.  The House showed exactly how to do it last term.  H.R. 3313, which passed last July by a vote of 233-192, would remove the “gay marriage” issue from the Supreme Court’s docket.  Each state’s high court would then have the last word.  In effect, the federal courts could no longer start this fire.

Congress, under Article III of the Constitution, controls the Supreme Court’s jurisdiction—a feature that the Framers included to provide a democratic check on the Court.  A simple statute passed by a simple majority of Congress and signed by the President can assure that each state can decide for itself without fear of being overridden by a judicially imposed uniform national rule.  The same democratic check on the Court can be used for any of the culture-war issues.  Let the states deal with them.  Congress, if the states abuse their discretion, can always restore federal jurisdiction.

The Constitution, in Abraham Lincoln’s phrase, is the frame of government under which we live.  But who interprets the Constitution?  The Constitution does not expressly assign that duty to any branch.  The Supreme Court, for the last 50 years, has claimed to be the exclusive and final interpreter.  The imperial judiciary rests on that assertion.

The Constitution, to the contrary, grants Congress almost total control over the Court—what cases it may hear and when.  Congress itself, of course, is bound by the Constitution and can only pass a law it believes to be constitutional.  The executive also, of course, cannot enforce a court order that it believes to be unconstitutional.  Three branches, not one, can and should interpret the Constitution.

The right plan only needs 51 votes in the Senate, and the Bush administration has 55.  The administration just has to use its 55-vote majority to get through the Senate a couple of laws like H.R. 3313.  Last year’s Senate did not take up H.R. 3313, but the Bush administration now has the necessary votes to pass a similar bill.  By a simple majority vote, our judicial dictators could disappear like evil spirits at the break of day.

The imperial judiciary has only existed this long because it has suited the convenience of Congress.  The culture-war issues are all political poison, and, if they can be dealt off to the life-tenured Supreme Court, all the better.  Similarly, the Senate, for decades, has been the graveyard for all efforts to overrule the Court by constitutional amendment—e.g., amendments concerning flag-burning, public prayer, campaign finance, and term limits.  Now, however, the Bush administration has a workable majority in the Senate, which is all it needs for the right plan.

The House is clearly on board with efforts to instill in the Court some respect for majority values.  Last term, the House—to the shock of the legal establishment—twice exercised its constitutional authority over the Supreme Court docket.  The first instance was H.R. 3313.  The second, H.R. 2028, passed by a larger margin.  The Court, on June 22, signaled that it would delete “under God” from the Pledge of Allegiance as soon as an appropriate case could get to it.  The House, just 90 days later, passed H.R. 2028—which would have removed cases involving the Pledge of Allegiance from the Court’s docket—by a vote of 247 to 173.  For an imperial Court, that is, shall we say, a bit disrespectful.  The Court will try hard to see that it does not happen again.

Last year’s Senate did not take up either H.R. 3313 or H.R. 2028, but the Bush administration now has no excuse not to end the imperial judiciary.  President Bush owes his election to people who do not think that the Supreme Court should impose “gay marriage” on the country and who believe the Court has been out of line for a long time.  He promised them he would rein in “activist judges.”  Now he has precisely the right instrument, at precisely the right place, at exactly the right moment in history.  That alignment may not come along again for quite some time—if ever.