by Mark Moore
I see that Federal Judge Kristine Baker has struck down Arkansas’ amendment to define marriage as the union of one man and one woman. She did so on the basis of the claim that to”deny consenting adult same-sex couples their fundamental right to marry in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”
Don’t think that I am an enemy of the judicial branch or contemptuous of the law. The truth is just the opposite. It is my love for our system of government, with checks and balances and high-minded concepts like Due Process, which makes me so incensed at their cheapening. We are headed for tough times in this nation. It will not be my doing, I am only foretelling. We are going to need a judicial branch that has credibility and moral authority to help hold our society together in the coming hard times.
That is why I object so strongly to doctrinaire leftists squandering the credibility of the judiciary by making ill-informed decisions such as the one Judge Baker just imposed on the people of this state, though to her credit she stayed implementation of her ruling pending an appeal.
Before I explain why she (like most recent courts) are using a new, novel, and erroneous, definition of the terms “equal protection” and “due process”, let me point out something about the 14th amendment. It is a mess. It turns most of the Bill of Rights on its head by putting the feds in charge of the states when the Bill of Rights were originally given to limit the federal government’s power over the states. But even then the judges are not using it right, because they often simply ignore the last clause “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
So you see judges are not supposed to use this amendment to manufacture new and novel “rights” out of thin air on the basis of the 14th, because the amendment itself says that the Congress, not the courts, have the power to enforce the provisions of the article. Congress has passed no law mandating state recognition of homosexual “marriages”. If Congress has done anything to speak to the issue, it has done the reverse. It has tried to say that for federal purposes marriage was the union of one man and one woman. Yet perversely, the courts have thrown that law out too, on the basis of what they (judges) feel the 14th says despite the clear language of the article that any enforcement of the article must come from legislation passed by Congress.
But even if that provision did not exist, she would still be getting it wrong because she gets “Due Process” and “Equal Protection” wrong. By “wrong” I mean she uses the new meanings of the term that judges have created for themselves to leverage their power and destroy self-government rather than the traditional definitions back when judicial restraint was more appreciated and practiced.
Let’s start with “Due Process”. In our system, everyone is entitled to it, but what is it? In the traditional view it means that agents of the government must act within the law when they enforce the law. For example, if they search your home without probable cause and without a warrant, they have violated your Due Process rights. The same goes if the arresting agents attempt to beat a confession out of you. If you are not allowed access to legal council when they try you, they have violated your Due Process rights. If they attempt to convict you of a felony without giving you the right to a trial by jury, they have violated your Due Process rights.
In each of these cases, the point of Due Process is to make agents of the government follow their own laws when meting out justice. This view of Due Process is the traditional one, but radical activist judges have expanded judicial power by claiming that “Due Process” can be used to void the substance of laws, not simply validate the procedures used to enforce them.
If I could give a more concrete example, suppose there was no law in Arkansas against driving while under the influence of alcohol. The people corrected this by passing such a law via ballot amendment. If the law said that police can arrest people and assign them 30 days in jail without bail and without seeing a judge, then this procedural aspect of the law would be a violation of Due Process. If throwing that provision out was all Baker did, that would be good, its how judges are supposed to protect us. But that is not what she has done. What she has done is the equivalent of saying that the people do not have a right to determine who can drive on public roads based on their behavior. It’s like claiming that people have a fundamental right to drive even if they drink up, shoot up, or snort up. It further claims that this “right” trumps the rights of any of the rest of us to try and protect ourselves and others by putting up legal barriers to behavior we have good reason to suspect will cause damage to innocents.
The very term “Due Process” makes it clear that it is the procedures used by government agents that judges are authorized to rule on, not the substance of what the law determines is legal or illegal.
Words mean things. “Equal” means something. It means “of the same value”. Two men having sex may be “equivalent” to a man and a woman having sex, but it is not “equal”. Two people shacking up together does not have the same social value as two people who have committed to one another before God and Man in marriage. Claiming that those two things are “equal”, that is, of equal value, devalues that choice which is really of greater value by pretending that it is not. Thus a logical case can be made that treating co-habitation as equal to marriage unjustly de-values marriage. Equal protection should not mean that all choices are equal, just that the law will protect even people who make disfavored choices or belong to disfavored groups.
Equal protection means just that, protection. It has nothing to do with what activities the law condemns. It has everything to do with the government protecting the victims of crimes by punishing those who victimized them. If crimes against blacks or gays were not investigated, or prosecuted, then they don’t have equal protection. They should, that is what Equal Protection is all about.
For that matter, even drug dealers and muggers should be protected by the law. If someone just decided to blow them away because “they were criminals anyway” the law would take offense. And it should take offense because even those whose behavior is in disfavor in one area still have the right to Equal Protection under the law. As applied to this case, it does not mean that the People don’t have the authority to decide what we want to honor and recognize as a valid marriage.
So in summary, Due Process is not a blank check for activist judges to throw out the substance of laws passed by the People. Rather it means that agents of the government should follow their own laws in enforcing the law. Equal protection does not mean that the law must treat all choices, marriage, co-habitation, necrophilia, drug-use, etc…., as equal as regards to eligibility to adopt children. It simply means that that the law should protect disfavored groups equally, even while the People retain the right to make certain choices and activities illegal or legally disfavored.