By now everyone is aware that on Election Day, three more states passed marriage amendments — California, Arizona and Florida — bringing to 30 the number of states whose constitutions define marriage as the union of one man and one woman.
But it's perhaps timely to revisit the question once again: Why were these amendments necessary? The vast majority of states already had statutes defining marriage in the traditional way. So why bother putting the definition of marriage into a state constitution by way of an amendment?
The answer is, as it has always been, the danger posed by arrogant judges who see themselves as above the law — indeed, creators of the law. It took only four judges in Massachusetts, four in California, and four in Connecticut to brush aside state marriage statutes by "discovering" a new constitutional "right" to same-sex "marriage" hidden between the lines of their state constitutions. Judges can trump statutes, but constitutional amendments trump judges. When judges attempt to rewrite constitutions, they cross the line that separates the judicial function from the legislative function, and violate their oaths of office in the process.
California's marriage amendment is unique in that its pending outcome was ignored by the California Supreme Court when it redefined marriage in a 4-3 decision in May. Because that same court, in a second vote, refused to delay its society-altering decision until after the Nov. 4 amendment vote, we now have more than 18,000 same-sex "marriages" whose legal status is uncertain. That uncertainty guarantees more litigation and additional cost to taxpayers, and it was irresponsible for the court to put California and those couples in the legal quagmire they find themselves in.
Now the amendment is back at the California Supreme Court in a lawsuit filed by homosexual-activist organizations attempting to thwart the will of the people once again. The lawsuit will almost certainly lose, but where activist judges roam, as they do on the California court, nothing is for sure.
But this practice of using the courts to bypass the democratic process in order to rewrite laws and create "rights" must end. Alexander Hamilton envisioned the judiciary as "the least dangerous branch" of government because it could exercise "neither force nor will" — meaning it had no authority to create law or rights.
The Founders had it right: The people govern. Thirty marriage amendments later, we're still trying to teach the courts their proper role.
