Can two individuals of the same sex enter into a lawful union, recognized by institutions in the United States? This question has in many ways sculpted all levels of the political landscape in America over the last decade. In the last five years, this question has taken on significantly more potency with greater ramifications. Right now, the U.S. Supreme Court is soon to decide on the legality of two major pieces of legislation: the Defense of Marriage Act (DOMA) and Proposition 8. But who should actually be deciding this question?
The chief justice was widely criticized for breaching what many in the U.S. saw as an abuse of judicial power as proscribed by the Constitution. I am speaking, of course, of Chief Justice John Marshall and his 1803 decision in the case of Marbury vs. Madison. In this decision, the principle of judicial review was firmly entrenched as an implied provision in Article III of the U.S. Constitution. This decision continues to shake the nation in that it effectively grants the U.S. Supreme Court the authority to strike down an act of Congress, resulting in what many decry as "legislating from the bench."
The ability of the Supreme Court to strike down legislation passed by Congress was not settled during the authoring of the Constitution because many of the framers feared the byproducts of embroiling the Supreme Court in political battles, not to mention the extent to which this reality could undermine the finely tailored separation of powers. The former fear is on the verge of being fully realized in the U.S. over the next month.
Both DOMA and Proposition 8 prevent same-sex couples from legally marrying. Opponents of these positions have challenged their legality in court resulting in appeals that ultimately sent both to the U.S. Supreme Court. The Supreme Court has heard arguments for and against both measures and will likely present their decisions in the next couple of weeks. Regardless of the outcome of their decisions, the Supreme Court will be spoken about like Congressmen supporting pork barrel projects and other proposals detrimental to our country.
Regardless of one's position on the issue of gay marriage, the Supreme Court has willingly taken on issues that were intended to exist within the realm of Article I. Every time the Supreme Court is presented with the opportunity to strike down legislative action, the thin line that prevents the branches of government from overlapping is made even thinner. While judicial precedent has provided justification for judicial review, how long and to what extent should it be allowed before the Supreme Court ventures into a detrimental realm disproportionately nullifying the Congress? The DOMA and Prop 8 decisions will hurt the fabric of our nation in that they will bolster a dangerous tradition of judicial overstepping.
The Supreme Court should be adamantly fighting change the rampant judicial culture of judicial review by refusing to hear and strike down legislative decisions. When the Supreme Court took these cases, they made the wrong decision. In conclusion, I would like to quote the aforementioned John Madison’s written opinion in the Federalist Paper 47. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."