By Maurine Jensen Proctor

The last time things were at such a fever pitch in Massachusetts the Red Coats were coming, and in the name of freedom the locals were stockpiling guns.  This time, however, the tyrant isn’t King George, it’s the faceless, genteel judiciary that is force feeding a new cultural and moral agenda on the population.

Hello gay “marriage” in the Bay State.  The Massachusetts Supreme Judicial Court by a 4 to 3 majority found what everybody has missed all of these years in the oldest state constitution in the nation-a gay “marriage” provision in the constitution.  Nothing short of that will do.

Pundit Ann Coulter noted, “The Massachusetts Constitution was written by John Adams, who was quite religious. It is the most explicitly Christian document since the New Testament, with lots of references to “the great Legislator of the universe.” Adams certainly would have been astonished to discover that the constitution he wrote provided for gay marriage – though one can see how a reference to two men marrying might get lost among the minutiae about the common good and “duty of all men in society, publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe.”

“The main lesson from the court’s discovery of the hidden gay-marriage clause is that these judges are in the wrong job. If they can find a right to gay marriage in the Massachusetts Constitution – never before detected by any human being – we need to get them looking for Osama bin Laden. These guys can find anything!”

The definition of marriage is certainly the front-burner issue in Massachusetts, but nearly as troublesome is the arrogance of the judiciary who with a single vote of an unelected judge stole the voice from millions of citizens on an issue that is fundamental to the very structure of society.

Glenn Stanton, spokesman for Focus on the Family said, “We’re hearing from people throughout the country. They don’t know which to be more outraged at – the death of marriage or the death of democracy.”

An overstatement?  We’d like to think so, but leading legal scholar Robert H. Bork in his book Coercing Virtue gives an alarming picture of activist judges and the role they are playing in the culture war.  They are moving America incrementally, but relentlessly left toward a new morality that very much resembles the old degeneracy.

What is the culture war?  It is a rough divide based on radically different social visions of what the world should be. At its most basic level, attitudes toward religion and the place of religion in society are the major determinants of who stands where in the conflict, according to Bork.

On one side are the so-called “intellectual elites” where most print and electronic journalists, the academics, the Hollywood media moguls and entertainers, personnel of museums, galleries and philanthropic foundations, radical environmentalists and feminists fall. Bork calls them the “New Class.” They have a view of a new utopian world and humanity based on the “spirit of liberation” and they are hostile toward religion and family, which they see as preserving the traditional values and oppressive morality of the past.

Robert Bork says, “The socialist impulse remains the ruling passion of the New Class.  What are the characteristics of an impulse toward socialism that manifest themselves in both the economic and the cultural aspects of life?  A partial list would include a passion for greater, though unspecified, degree of equality; a search for universal principles, radical autonomy for the individual (but only in a hierarchical and bourgeois culture-when that is replaced, there will be little tolerance for individualism); radical feminism; and a rationalism that despises tradition and religion and supposes that man and society can be made anew by rational reflection.

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“To these qualities might be added a softness of spirit, a desire to ensure that no one, other than intellectual enemies, suffer the least degree of discomfort.  The socialist economic vision, after all, stressed the desirability of a world in which no one experiences anything less than a comfortable material life.  The same attitude may extend to the cultural and psychic components of life.  It is not entirely clear whether this view is an aspect of the socialist impulse of whether it is merely the inevitable attitude prevalent in an affluent technologically advanced society in which comfort and convenience have become the primary goods.  Whatever the explanation, an exaggerated solicitude for the feelings of people is to be found in the jurisprudence of activist courts.  It is by no means an undifferentiated solicitude, however, and it contains a strong ideological component.  The comfort of some often requires the discomfort of others, and the gavel fals in favor of those the New Class favors.”

The New Class looks forward to a brave new world where the population has decreased, family has dwindled, sex is universally recognized as merely an animal need and guilt is swept away.    

Entertainment’s sudden embrace of homosexuality, the push for same-sex “marriage,” the sexuality that knows no limits and saturates our popular culture, the new push toward euthanasia, the trampling of religion out of the public square, the degradation of our language and thought, the idea that society’s sense of morality no longer matters-these are the result of the agenda of the intellectual elite.

They patronize the rest of us ordinary people who they often see as stuck in the backwaters of religion and family. 

Scot and I met a legal scholar from a prominent Eastern university at a meeting of a Washington D.C. think-tank, where the last year’s decisions of the Supreme Court decisions had been reviewed and analyzed. When we asked him if he thought the Court sometimes overstepped its bounds and became legislators, he explained to us, with an air of condescension, that it was the duty of the enlightened to lead the rest of society to a higher place-even, he inferred, if it meant the “ordinary people” go sometimes kicking and screaming.

Same-sex “marriage” does not have the nod of the majority of Americans, and neither do many of the ideas of the “intellectual elite.”  Their vision of the world cannot pass the muster of the voting booth, so, says Judge Bork, they look to the courts and activist judges to enact their vision.

It’s a handy place to look because the ranks of the bench are filled with their own kind-members of the “New Class.”

“Activist judges” said Bork, are those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of the law.  They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law.  The law in question is usually a constitution, perhaps because the language of a constitution tends to be general and, in any event, judicial overreaching is then virtually immune to correction by the legislature or by the public.”

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 It is politics masquerading as law, and, said Bork, Americans let the judiciary get away with it.  Even as judges strike down ideas and concepts the people hold dear, poll after poll show that Americans regard them highly and their authority is accepted as entirely legitimate. They are the keepers of the sacred text in the civic religion and they make pronouncements of morality which are considered final.

Since the economic theory of socialism has been discredited, Bork said, “the attack turns to ‘lifestyle’ inequalities, to a demand that we cease judging people and their actions according to the traditional moral scale.  Traditionalists denounce this approach as moral relativism, but it is not that at all.  Cultural socialists have their own moralities, often enforced with a fierceness unknown to upholders of the old moralities. That fanaticism is manifest in what we call ‘political correctness.’  ‘Nonjudgmentalism’ is the first step toward a harsh judgmentalism in the service of a different morality.”

Not every judge aspires to be a lawgiver, of course; not every judge is activist.  Yet, said Judge Bork, “The prestige of a judge depends on being thought well of in universities, law schools and the media, all bastions of the New Class.  Very liberal judges are routinely labeled ‘moderates,’ while judges who attempt to apply a law as it was originally understood are equally routinely called ‘conservative’ or ‘right-wing.’

Bork notes, “Because the new morality is not to be found in the constitutions judges profess to be interpreting, they must therefore, invent new meanings in order to carry out the New Class program.”

When judges create the law by interpreting constitutions to mean whatever fits their philosophy, the people gradually lose their freedom. A tiny minority of people who happen to wear black robes are making the law instead of the voice of the people.

It is tyranny and ironic that in the war to define the meaning of marriage, its focal point should be Massachusetts where in an earlier generation people fought so hard against tyranny.

Bork said, “It is often easier to predict the outcome of a case by knowing the names of the judges than by knowing the applicable legal doctrine. The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will.”

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We have been conditioned to accept this.  We expect that as soon as a law is passed-particularly involving morality or lifestyle, it will be immediately challenged in the courts.   Judicial review was once exercised sparingly in America, but now it is a matter of course. We pass a law, even when it is by a great majority of legislators who feel strongly impassioned about it and commissioned by voters on an issue, and it heads to court.  For example, even before President Bush signed the bill banning partial birth abortion, lawsuits had been filed in three federal courts.  

A federal judge, U.S. District Judge Richard L. Williams recently struck down Virginia’s ban on partial-birth abortion (which the newspaper euphemistically called “a type of late-term abortion”) saying the law violated privacy rights.  The judge blocked the law last July, the day it went into effect, calling it a “no-brain case.”  He also challenged the use of the term “partial birth infanticide” by law’s backers, saying it was an attempt to alarm  the public.

“It is a dismal reflection on our times,” said Bork, that few people other than activist groups and cultural elites, who want more of the same, seem to be concerned about the gradual replacement of democracy by judicial rule.  This however, is not a minor matter of judicial philosophy, of interest only to the theoretically inclined.  At stake are personal freedoms.  The fundamental  freedom recognized in democracies is the right of the people to govern themselves.  Specified constitutional rights are meant to be exceptions, not the rule.  When, in the name of a “right,” a court strikes down the desire of the majority, expressed through laws, freedom is transferred from a larger to a smaller group, from a majority to a minority.”

Yet people sense this loss.  It makes them apathetic-less willing to go fight a battle they care about, thinking that no matter what the majority thinks, it is the court that will have the final say.  A Meridian reader wrote, “I put on my suntan lotion and went door to door in California to defend marriage.  What difference does it make now?”

It makes a difference.  We cannot take the court’s new definition of virtue with a sense of fatalistic inevitability. In an interview with Robert Bork, he told us, “One thing that could be done is to get judges that understand the judicial role, which is much more modest than their current behavior would suggest.  Getting those judges is very difficult.  You would have to win elections and control the Presidency and the Senate.”

It means, however, that we have to ask candidates for office not just questions about health care or the economy, but where they stand on this question and what they will do about it.  Democracy was too hard won to let it drift away from us so easily.

In the case of defining the meaning of marriage, judges-like those in Massachusetts-will construe constitutions to mean what they will, unless voters spell it out in a constitutional amendment.