Brookfield Basics

With these three words the Supreme Court of New Jersey spoke volumes about why ballot initiatives on the institution of marriage, such as the one we face in this State next week, are appearing all over the country. Their decision further reads, "We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage, must be made available to committed same-sex couples".

Now I want to be very clear on what this column is about. It is NOT about the specific issue of same-sex marriage; that is a question to be debated on spiritual, social, and cultural grounds. It is about the political PROCESS involved with reaching such decisions.

On the Federal level, nine APPOINTED people should not, in my view, be able to make ANYTHING "the law of the land"; that is a legislative function. I am opposed to any amendment to the U.S. Constitution that would EITHER ban OR establish same-sex marriage. I am opposed to Roe v. Wade, but am ALSO opposed to any decision from the Supreme Court that would BAN abortion. These convictions are rooted in my POLITICAL beliefs as to the role of the Federal judiciary. The intent of the Founders was to leave such matters to the adjudication of the States, and to their respective peoples and legislatures. Why should nine appointed people in Washington DC decide what is best for the good people of New York and Montana, or Wisconsin and Utah? The Founders saw this as not only the proper way to govern, but there can be little doubt that if such an approach was used, there would be far less national strife over such matters.

The arrogance of their decision may have given even the "New Jersy Nine" pause, as they later attempted to throw some obligatory sops to the notion of the democratic legislative process. They further wrote that, "the great engine for social change has always been the democratic process", and still later, "a constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores". But after applying this balm to their sensitive judicial consciences, they rejected their own common sense, and plunged ahead with re-engineering the social and cultural landscape of their State. In its most elemental form, this decision sent the message to the citizens of New Jersey that, "we are not interested in what you may think or believe", for in our great wisdom and beneficence, "WE HAVE DECIDED".

Again, such matters are best fit for the legislative chambers of our State and Federal governments. There they could be debated under the full gaze and scrutiny of the voting public, where legislators facing re-election by that same public would give an account for their decisions. This was the intention of the Founders, and the fact that they could not have foreseen such specific societal questions, in no way diminishes the effectiveness of the institutions they fashioned to handle such matters.

The reason there is such a concern in America today about the issue of judicial overreach is because it happens so regularly, and in this case of New Jersey, so blatantly. Whether you are FOR or AGAINST the idea of same-sex marriage, give some thought to this question of what political process is best employed to decide such issues.

And if you wonder why Wisconsinites are facing a ballot initiative next week regarding the institution of marriage, I would submit that it is as much about controlling runaway judiciaries as it is about the legitimate social and cultural concerns it raises.