If you're not familiar with this term, you should be

The term is "judicial oligarchy".

I first heard it back in 1996, when First Things published a fascinating and sobering symposium titled, "The End of Democracy? The Judicial Usurpation of Politics" (November 1996). Authors included Robert H. Bork, Russell Hittinger, Hadley Arkes, Charles W. Colson, and Robert P. George. The introduction to the essays stated:

The proposition examined in the following articles is this: The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of “things of their knowledge.” Not that judges necessarily claim greater knowledge; they simply claim, and exercise, the power to decide. The citizens of this democratic republic are deemed to lack the competence for self-government. The Supreme Court itself—notably in the Casey decision of 1992-has raised the alarm about the legitimacy of law in the present regime. Its proposed solution is that citizens should defer to the decisions of the Court. Our authors do not consent to that solution. The twelfth Chief Justice of the Supreme Court, Harlan Fiske Stone (1872-1946), expressed his anxiety: “While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint.” The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.

As important as democracy is, the symposium addresses another question still more sobering. Law, as it is presently made by the judiciary, has declared its independence from morality. Indeed, as explained below, morality—especially traditional morality, and most especially morality associated with religion—has been declared legally suspect and a threat to the public order. Among the most elementary principles of Western Civilization is the truth that laws which violate the moral law are null and void and must in conscience be disobeyed. In the past and at present, this principle has been invoked, on both the right and the left, by those who are frequently viewed as extremists. It was, however, the principle invoked by the founders of this nation. It was the principle invoked by the antislavery movement and, more recently, by Martin Luther King, Jr. It is the principle invoked today by, among many others, Pope John Paul II.

The symposium came to mind again (as it has many times over the years) when I read the following news piece from the Associated Press:

California's top court overturns gay marriage ban

In a monumental victory for the gay rights movement, the California Supreme Court overturned a voter-approved ban on gay marriage Thursday in a ruling that would allow same-sex couples in the nation's biggest state to tie the knot.

Domestic partnerships are not a good enough substitute for marriage, the justices ruled 4-3 in an opinion written by Chief Justice Ron George.

Outside the courthouse, gay marriage supporters cried and cheered as news spread of the decision.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," the court wrote.

None of this, of course, is really surprising anymore. It is almost a given. It is a given. But, just in case you weren't sure what to call this sad state of affairs, there it is: judicial oligarchy. Read it and weep. But do so privately; you never know who might sue you for publicly expressing anguish over the demise of traditional, commonsensical morality and governance.

Comments

[Mark]

How long do you think we'll have to wait before the bishops of California courageously begin their work of encouraging their flocks to faithful citizenship by voting for the Limit on Marriage ballot initiative in November?

Does anyone even think this will get much/any mention in homilies this Sunday?

[padraighh]

But, then why ban polygamy? No earthly reason.

[Carl Olson]

But, then why ban polygamy? No earthly reason.

Or a brother and sister marrying. Or son and mother. Etc, etc. But, hey, the California Supreme Court knows something about "loving and long-term committed relationships" that the rest of us apparently do not...

[Brian Day]

How long do you think we'll have to wait before the bishops of California courageously begin their work...

I think that Bishops Weigand in Sacramento and Brom in San Diego will answer the call. Bishop Garcia in Monterey maybe.
Cardinal Mahony, Bishops Neiderauer in San Francisco and Brown in Orange, most likely will not.

[Stohn]

It must be nice to be able to have the power to call anything with which one disagrees unconstitutional. Maybe I'll get on a Supreme Court and declare driving under the speed limit unconstitutional...

[Sleeping Beastly]

Carl, you are upset for the wrong reasons. There is nothing intrinsically wrong with the judicial capacity to override democratically-approved initiatives, particularly on a state level. Remember, it was the judicial branch that overturned segregationist laws in the South in the 20th century. These laws had public support, but they were deemed unconstitutional, and were (rightly) overturned.

In fact, there's nothing infallible or holy about democracy, even in principle. Democracy permitted slavery in this country since its inception, and it took a decidedly-undemocratic executive order to end it. Democracy could, in theory, end abortion with a constitutional amendment, but has failed to do so for 35 years.

In short, I am not upset that courts can overrule the voting public- I've known that for years, and it doesn't strike me as necessarily a good or bad thing.

What we are all upset about is the fact that we see the final nails being hammered into the coffin containing Marriage and Family. Honestly, I think we pulled the plug on marriage when we voted for that gay "marriage" ban in the first place. By voting to ban it, we implied that it was factually possible. We accepted a new definition of marriage, one that allowed for the possibility of same-sex weddings. We said, in effect, "gay marriage is a real possibility, but we don't want to allow it in our state."

We should have said "We will no more vote to ban gay marriage than we will vote to ban dry water."

That was when we pulled the plug, but we started poisoning marriage a long time before that, when we began tolerating adultery, contraception, pornography, no-fault divorce, remarriage, broken homes, deadbeat dads, single mothers, and (most abhorrently) abortion.

I predict we will start seeing the natural conclusion of the sexual revolution over the next couple of decades. I don't think that legitimized bestiality, pederasty, multi-partner "couples", anthropophagy, and even involuntary euthanasia are out of the question.

[Augustine II]

"The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."

-Justice Antonin Scalia, Wabaunsee County v. Umbehr, 518 U.S. 668 (1996) (dissenting)

Yes, it's time to get this:

http://tinyurl.com/3zzdry

[Augustine II]

And of course it's consistent with Justice Kennedy's diabolical majority opinion in Planned Parenthood v. Casey, where the Court enshrined relativism as a constitutional pillar. Thus spake Kennedy:

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life."

[Carl Olson]

Carl, you are upset for the wrong reasons.

No, not really. I agree with some of what you say, but just because the courts can do good things (something I'm not blind to, btw) doesn't mean one shouldn't be upset when they so obviously do bad things.

We should have said "We will no more vote to ban gay marriage than we will vote to ban dry water."

I'm not sure I agree with you on this. I think those of us who try to defend real marriage are, in many ways, put into a lose/lose situation. Do nothing, you lose. Do something, you lose.

That was when we pulled the plug, but we started poisoning marriage a long time before that, when we began tolerating adultery, contraception, pornography, no-fault divorce, remarriage, broken homes, deadbeat dads, single mothers, and (most abhorrently) abortion.

But, of course, we do vote on a lot of these issues (or issues directly related to them), don't we? And many others have been set into semi-permanent states (I'm thinking of abortion) by the same judicial oligarchy that is now shoving "same sex marriages" down our throats. So...

[Rick]

Physicist Peter Hodgson likens the denial of the Natural Law to denying the laws of physics, both have catastrophic results. That is why I have to laugh at the myth of progress, for every great leap in technology we tend to take 2 steps back in morality. When the law becomes absolute in-itself, as R. v. Wade and the California case seem to indicate, the human soul and lives are its victims.

[Robin Conroy]

But hey y'all! - -Thank you those of you in California - those of us who are partnered AND working for the church have also had domestic partner rights. Yes, the church tries to say we don't - but the government says you have to - sorry! I so respect heterosexual marriages BUT hey - you guys clean up your messes of "divorce", "domestic violence", "deadbeat moms and dads" - oh and while you are at it - - i am waiting for all of you to offer up YOUR wives to carry the eggs in fertility clinics that are being thrown out DAILY!!!! Work on that before you go slamming us who are trying to live Strong, loving and wise relationships that are NOT hurting anyone. So why not polygamy - because it seeped into a moral issue of girls under the age of consent being raped! Why not incest - because there is a proven fact that an incest couple who tries to produce a child (hey - they will admit they are having sex to conceive a child - it is So catholic) can have many complications. But we who are gay and partnered are simply asking you to LEAVE US ALONE about what we do in our bedrooms - Trust us - - we are in your communities every Sunday - EVERY SUNDAY!!! Your Catholic schools have accepted OUR children - but many of my friends live in fear that if they worship as a family in a Catholic church they could be harmed - sobefore you beat us up - -beat the guy whose sitting next to you whose wife has the black eye - - yep -tell me all about that LOVE story!
WE ARE HERE - Finally MA and CA have recognized us! Thank you!

[Gail]

Robin:

We who understand that marriage by definition MUST BE between a man and a woman have no problem with leaving you alone. In order for that to happen, you will have to stop insisting that you want to get married.

You are right about problems with some men's and women's marriages, but the fact that some people screw up their lives does not negate the fact that most do not. That said, it is true that serial divorces, non-married couples claiming and receiving marital benefits, no-fault divorce whenever one half of a couple wants one, single women having children, and an unprecedented number of women raising children on their own have significantly damanged the institution of marriage.

Marriages must be helped and strengthened, and people who for whatever reason choose to cohabitate without marriage must live without the perks, as well as without the "shackles" of marriage.

[Stohn]

"Yes, the church tries to say we don't - but the government says you have to - sorry!"

Mmmm...actually the government can't force a religion nor an individual to believe something...sorry.

[Rick]

Robin,
Why all the talk of violence, divorce, incest and rape? Aren't some of these the very problems that drive women to lesbianism? You can ignore the Eternal Law of the Church which has always held homosexuality to be a sin. And, in doing so you also ignore the Natural Law which holds that homosexuality to be morally wrong, all the great religions of the world recognize this. Yes, you can choose to ignore sin, but the more you or any of us do so the more we become steeped in it to the point that we begin to see morally evil things as good as you do with your homosexuality. Homosexuals are in our communities, as our adulterers, thieves, liars, the point is that each of these is sinful, being in a community does not justify evil. Just because we sin, that does not mean that we can or should justify it-you can try to ignore your conscience but you can't run from it. The Church is only trying to save your soul because we are called to love you.

[Carl Olson]

Hmmm...so, since heterosexual people do bad things, "homosexual marriage" should be a "right"? Not very logical. Especially since it can be turned around by showing that homosexual men, in particular, don't demonstrate much in way of commitment and monogamy.

In addition, it's like insisting that since some doctors mess up and kill patients, everyone and anyone can practice medicine. Or since some cops are corrupt and take bribes, we shouldn't acknowledge the proper place of law enforcement. The "argument" is self-defeating, because it simply highlights the fact that real marriage consists not of anyone and everyone saying they are "married," but consists instead of specific qualities and limitations and true rights.

[Robin Conroy]

No to many of you - 1. Stohn - I checked on two cases with gay full time employees being denied benefits because it was against "church teaching" - In both cases it was proven that the catholic community in each case benefited from money from the government (i.e. school abatement and hot lunch program) therefore the state did have a say in employment issue. 2. Carl and Rick - my point was - yes I know many of you probably have wonderful marriages - but again, what gives you the right to say I can't have that same relationship with my lesbian or gay partner I know, i know- natural law - God said "no" - but somehow I know I am a better person in my ministry because I am in a relationship. I do the PMI for couples and I hear their stories - many gay couples I work with have the same stories and issues. Why is it wrong - and don't give me the line that the Catechism says the sex does not lead to procreation - Fine - but again - as A complete person I found another complete person to share my life with- someone I want to make a commitment of marriage to - and I want to do it with all the rights that go with it - - What California said today was "Yes I have that right" and "Yes they support it" - - Don't make us have to take parishes and dioceses to court over denying our rights - I am not saying we will come out with vengeance with pitchforks and spears - but c'mon if all the gay ministers/employees in the Catholic church stood up and walked out of the church - you'd have the same problems that the voices of immigration have - as an economy the US just can't shut the borders - the same needs to be said about the many of us who CHOSE to work/minister in the church. If we all were banished and walked out - there would be a crippling effect on the mission of God's church. We are not priests - so don't give me that line about gays are not welcome in the priesthood anymore - but we are lay employees. How many of you have dishwashers in your houses - - how many have microwaves - - these are products of change - and as society changes the GLBT community is being recognized as an acceptable way of life and we are recognized - then we as gays who have attained our equal civil rights are simply asking to further that into the rights of marriage. I know I will never convince you as you will not convince me - but I have to ask you to be careful - it is in some of the rhetoric written above AND rhetoric found on some right wing religious and political sites that can ignite in some people a need to act out with violence. Please, just be careful - and those of you planning to stand outside (or even inside) your churches asking for signatures to support a constitutional ban - look at what you are doing - - if someone does NOT sign - what does that say about them? For the first time in my father's life at the age of 65 he felt the church damned him - he is very recognized in the church community for his volunteer work and yet when he did not sign a petition asking for a ban on any form of gay marriage - he said "I cannot support something that would deny my son the right to live his life" he was brought before a council - brought before his friends as a detriment to the spiritual life of his and my mother's community. I asked my father and mother if they felt I was not honoring them - and they smiled and said - "Son - through you and your struggles we have truly found the face of a compassionate God". So . . . please - just think before you begin acting as this small band of people trying to make the world in the image and likeness of what you think the God of unconditional love wants! If you feel the need to cause a commotion in your community or alienate those who may be trying to find a life of faith in the church - just think what our teens say so often WWJD! Live it, pray it and accept what you find in your answer. May the peace of God bless all of us!

[Augustine II]

Some food for thought before you go:

"To the extent that man seeks in new ways to build for himself the world as a whole, thereby ever more perceptibly endangering its foundations, he also loses his vision of the order of creation with regard to his own life. He considers he can define himself as he pleases by virtue of an inane freedom."

-Benedict XVI, Address to the Second Group of German Bishops on their "Ad Limina" Visit, 11-18-06

"Political correctness seeks to establish the domain of a single way
of thinking and speaking. Its relativism creates the illusion that it
has reached greater heights than the loftiest philosophical
achievements of the past. It prescribes itself as the only way to think
and speak - if, that is, one wishes to stay in fashion. Being faithful
to traditional values and the knowledge that upholds them is labeled
intolerance, and relativism becomes the required norm. I think it is
vital that we oppose this imposition of a new pseudo-enlightenment,
which threatens freedom of thought as well as freedom of religion. In
Sweden, a preacher who had presented the Biblical teachings on the
question of homosexuality received a prison sentence. This is just one
sign of the gains that have been made by relativism as a kind of new
`denomination' that places restrictions on religious convictions and
seeks to subordinate all religions to the super-dogma of relativism."

-Joseph Ratzinger, Without Roots: The West, Relativism, Christianity, Islam, p. 128.

"It is our task to make people understand that the moral law given to us by Him and manifested to us by the voice of our conscience does not aim to oppress us but rather to set us free from evil and make us happy."

-Benedict XVI, Lecture to 59th Study Conference of the Union of Italian Catholic Jurists, 12-09-06

Instead of making it possible to breathe humanly again, we defend with a totally false conception of freedom everything that man's arbitrary desire produces. As long as we retain this caricature of freedom, namely, of the freedom of inner spiritual self-destruction, its outward effects will continue unchanged."

-Joseph Ratzinger, Salt of the Earth

"Wherever God is not, hell comes into existence....That may also come about in subtle forms and almost always does so under cover of the idea of something beneficial for people."

-Joseph Ratzinger, "Church on the Threshold of the Third Millennium," Pilgrim Fellowship of Faith, p. 285

"The loss of transcendence evokes the flight to utopia. I am convinced that the destruction of transcendence is the actual amputation of human beings from which all other sicknesses flow. Robbed of their real greatness they can only find escape in illusory hopes."

-Joseph Ratzinger/Benedict XVI, Christianity and the Crisis of Cultures

"Today, having a clear faith based on the Creed of the Church is often labeled as fundamentalism. Whereas relativism, that is, letting oneself be 'tossed here and there, carried about by every wind of doctrine,' (Eph. 4:14) seems the only attitude that can cope with modern times. We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one's own ego and desires."

-Benedict XVI, Mass Pro Eligendo Romano Pontifice, Vatican Basilica, 4-18-05

[Stohn]

Come on Augustine, the California Supreme Court knows better than mere Popes.....

[Soledad]

I thought it rather fitting that this accursed opinion was issued on a infernally hot day here in San Francisco.

If you haven’t already done so, read Justice Baxter’s dissent, joined in by Justice Chin. It’s a very well-reasoned analysis of the “judicial fiat” accomplished by the majority. (The full opinion is available on the court website at www.courtinfo.ca.gov/opinions/ )

[Sleeping Beastly]

Robin, you misunderstand the issue. "Marriage" has always (even in ancient Greek and Roman societies, which had no problem with gay sex, by the way) meant a certain covenantal (or, if you prefer, contractual) relationship between a man and a woman.

California does not enforce any sodomy laws, so no one is trying to tell you what to do in your own bedroom. California has legal avenues for any two people to enjoy all the benefits (and even some of the hassles) of being married, including insurance benefits, inheritance rights, and power of attorney. There is no material advantage to be gained by changing the definition of the word "marriage".

But make no mistake, that's exactly what's going on here. Gay people are not simply insisting on their right to be left alone, they're insisting on a legal change to the definition of the word "marriage". The truth is, you'll probably get your way, and I suppose now that the semantic waters have been so muddied we will need a new term for genuine marriage.

[Sleeping Beastly]

Mmmm...actually the government can't force a religion nor an individual to believe something...sorry.

Just wait. You'll see "hate crime" legislation addressing this very issue soon enough. It's already happening in Canada, and it's starting to happen here too:

http://www.religionnewsblog.com/20546/hate-crime-3
http://www.onenewsnow.com/Legal/Default.aspx?id=75547

[bill]

The Courts have once again, shown that the rights of children are again totally ignored. A child deserves to have as role models, a mother and a father. They need the best from both sexes. And there are other considerations. We have had for some time, a public discussion of the criminality of clergymen molesting children. The word "Gay" in connection with the clergy, was here rigorously omitted by the press.
They were "just" Catholic priests, not gay men.
If priests, who are well educated in canon law, the moral law, and criminal law, and who have advanced degrees, succumb to their sexual temptations, and molest children, can we expect better of the average gay man?
The next step is for gay marriage partners to adopt children. Is this acceptable for members of NAMBLA? Is it acceptable for those gays who openly flaunt their hypersexual activities every year in the Folsom street Fair? Is it acceptable for men who daily frequent Gay Baths, to adopt children? The press now rigorously cleans and scrubs the public image of gay behavior, as if they are all wonderful considerate citizens, all with haloes. The reality is much grittier. A teenager who attended school in the Castro area, told me, laughing, that it was common for gay men to solicit him while he waited for his bus. Absolutely, there are some gays who are moral and considerate. But, the reality is that, gays often have multiple sexual partners and display overt sexuality. The proof of this can be seen in any gay area. Walk down Castro Street, and look in the bars. If you are gay, ask yourself, what is my motive in marriage, and can I adopt a child, and will it be good for the child?

[LJ]

I think that it is time for the Catholic Church in the United States to do what the Eastern Orthodox have done in some parts of the world because of their experience with Soviet Communism, that is, to de-link the Church and State with respect to marriage.
It may be cumbersome but so long as the Church retains the authority to marry for the state's civil purposes, the threat is very real and not far away that the state will enforce its definition of marriage on the Church. If the Church only performs the Sacrament, and until freedom of religion is rescinded, Catholic marriage is protected from state interference.
Of course, for most people it would require two marriages, one state, one sacrament, but it would keep the legal documents in the vestibule and off the altar.

[Richard Pinion]

Obama 08, universal USA same sex marriage 09!!!! Sorry Hilary you don't get to do that one.

[Laura P.]

Lord, help us all! While it is true that "judicial oligarchy" has been a good thing in some instances (like desegregation), it is being used repeatedly to shove moral relativism down our throats. This has ceased to be 'government of the people for the people BY the people" but has instead become government of the people for the special interests by the courts.

Robin, I respect you as a person created in the image and likeness of God, someone who deserves respect and has inherent dignity and worth (though no doubt that your definition of respect and mine are different). However, I disagree with just about everything you have said, and I disagree with the homosexual agenda in all its forms, especially with the redefinition of marriage and the forced indoctrination of children. Governments are being forced by the "dictatorship of relativism" to redefine marriage and other things to satisfy vocal minority groups, but the Church cannot and should not be forced to "redefine" what God put in place. If the Church bows to social pressure and departs from the standards given by God, then she becomes meaningless, just another group with an opinion in a world with no absolutes. Read Theology of the Body. Marriage involves complementarity -- of bodies, of personalities, of roles. A homosexual relationship, no matter how loving or long-term, will never have true complementarity, especially of bodies. The fact that the parts don't fit and that sodomy damages the parts involved (unlike vaginal sex) will always be a sign that homosexual relationships are not what God intended.

You say that homosexual relationships are not hurting anyone. I beg to differ. First, they injure the parties involved because of the lack of complementarity mentioned above, which leads to injury and disease. Statistics show that homosexuals in general have higher rates of drug and alcohol abuse, depression, and suicide than other groups, even in gay-friendly areas like San Francisco. Second, these and other health risks that are the direct result of homosexual practices contribute to the spiraling medical costs for everyone. Third, the homosexual lobby is about forcing everyone else to condone their behavior, which means that a. Events such as the Folsum Street Fair and Gay Pride parades happen in front of everyone including children who are being exposed to the depraved behavior of some of the participants, b. Schools are being taken over and forced to teach gay-promoting classes to young, impressionable children over their parents' objections, thereby creating a whole generation of people who are more confused than ever about sexuality and morals and parental authority, c. The definition of marriage and family is being obliterated so that the terms become meaningless, thereby destroying the foundation of society, e. Catholic adoption agencies are forced to deny Church teaching and place children with gay couples or close their doors, to the detriment of the children so placed and the detriment of the children who could have been helped if the agency had remained open, f. The expression of agreement with Biblical moral principles regarding homosexuality could soon become a prosecutable hate crime as has happened in Canada. Fourth, there is the damage to the eternal souls of all involved in homosexual behavior and those who condone it.

I could go on, but I'll spare you the dissertation. My point is, to say that homosexual "marriage" isn't hurting anybody is definitely not true.

[LJ]

"Third, the homosexual lobby is about forcing everyone else to condone their behavior"
This is the core of it all. But make no mistake, social and legal acceptance are only milestones along the way. The end goal is to make God accept the behavior. But that's impossible, right?
This is very, very important to recognize. It does not matter if every Episcopal communion, every Baptist communion, every Lutheran communion, etc., etc. accepts homosexual lifestyle and blesses their unions, it will never be enough. There is only one man on earth that can claim to be the Vicar of Christ with the power of binding and loosing. Everyone knows it, whether they would care to recognize it or not. So the end goal is, and will always be the one Holy Catholic and Apostolic Church. For the homosexual agenda, that is the final ultimate target, to force the Church to recognize their unions.
We know that will never happen because the Holy Spirit protects the Church and will not let it happen, but we must not be under any illusions about this. We are the ultimate target and state power is one very useful means to that end. So we have to be prepared for what is to come, and we cannot be caught standing around wringing our hands. One barricade on the outer perimeter has come down. That is all. So we go from here, assuming a hostile government, and learn how and where to disengage and re-engage elsewhare.
We cannot try to re-fight lost battles because we lose too much energy. We have to re-group and have a realistic look at where we are. There are still many fronts on which we are winning in the society at large, so we pour our energies in those directions and perhaps make an end run.
I take seriously Robin's veiled threat of violence and court challenges and I think rather than trying to convert him, at this juncture we should thank him for the warning and prepare.
And for those that think it can't be that bad, and this is only "bunker" thinking, it is only realism. Jesus warned us about this. The history of the Church proves it and our only real mistake would be in thinking that the United States is immune because it is democratic. The Constitution is only as good as those who uphold it. It has always depended upon the morality of those elected to power.

[Dale Price]

"it is in some of the rhetoric written above AND rhetoric found on some right wing religious and political sites that can ignite in some people a need to act out with violence."

Such violence being authorized by the I'm Right So STFU Act of 2007 and the Hurt Feelings Vigilantilism Authorization Act of 2008.

Kinda ironic to see the gay lobby taking a cue from radical Islam, but there you go.

[Augustine II]

It's no accident that Plato, in his Republic, placed democracy as the last step before tyranny.