Joseph Farah makes the standard conservative argument against judicial review when he really means that he disagrees with a particular ruling, or potential ruling in this case. Of course it’s about same-sex marriage and the horrors of having it legalized by judges instead of legislatures.
The institution that forms the very basis of self-government could soon be redefined, not through the legislative process and contrary to the express will of the people, by two wholly unaccountable powers – judges appointed to lifetime seats and activist cultural forces including the press and entertainment industry.
The institution is marriage, as it has been defined throughout the history of Western civilization, the biblical Judeo-Christian ethic, common law and natural law.
Defined in the Bible as the union of one man and one woman, marriage has been practiced that way by most well-functioning societies in the world whether or not they are Judeo-Christian in orientation. The notable exceptions are Muslim nations, some of which affirm polygamy as an option. For instance, polygamy is virtually unknown in China, where there are no laws prohibiting it, and equally scarce in India where it is illegal.
But the raging debate in the U.S. today is not about polygamy. It’s about redefining marriage to permit people of the same sex to wed legally. Perhaps “debate” is not the right word for what is taking place – because intelligent discussion and dialogue on the topic are hardly encouraged in what we euphemistically call the “mainstream media.” Nor is there much tolerance for a status quo position on marriage in the entertainment industry, which probably exerts an even more powerful influence on the opinions, attitudes and morals of its consumers.America, however, after years of voting affirmatively to keep the definition of marriage as the union of one man and woman in 31 states, seems poised to accept a redefinition by federal judges, who have thus far shown a willingness – perhaps even eagerness – to assert such authority.
I know, right? Just like in 1967, after two centuries of voting affirmatively for laws banning interracial marriage, the country was “poised to accept a redefinition by federal judges.” Anyone doubt that Farah would have said the exact same thing in that case had he been writing then? And remember, this is the man who cheered loudly when the Supreme Court struck down the key portion of a law that had passed Congress virtually unanimously several times since 1965 (the Voting Rights Act). And demanded that those same unelected judges overturn the Affordable Care Act. His arguments are against judicial review, but he isn’t actually against judicial review, he’s only against it when he doesn’t get his way.