Legislature or Judiciary?

Norm has a post up on the decision of the Vermont legislature to legalise same-sex marriage. He says:

Rod Dreher says that, though he’s opposed to gay marriage, if it’s going to be legalized, this is the right way to do it – that is, legislatively, through ‘the elected representatives of the people’, rather than having it ‘imposed on unwilling polities by the judiciary’. I must say I find this a strange argument coming from within a liberal democratic culture that generally lauds the separation of powers. Particularly since the subject here is that of a person’s sexuality, a matter at the very heart of questions of identity, of the right of individuals to freely choose to be who they are. If the courts are thought unfit to rule on a question like this, it amounts to saying that social majorities can dictate how each of us lives, even though our life choices may be injurious to no one. For this argument to be made in the United States of America of all places does strike me as odd.


I agree with Norm on this. However, tactically, I am attracted to Rod’s position. Let me start with a little story.

A number of years ago, a contemporary of mine at Oxford – now a prominent Professor of Law – was teaching United Kingdom Constitutional law (such as it was, at the time) on a US Summer school program. During the course of a tutorial, he observed that certain policy matters were decided by the courts in the US as matters of constitutional right,  in the United Kingdom were  decided by the legislature.

He gave as an example, the right to an abortion: in the US, the product of a Supreme court ruling, and in the United Kingdom, the result of the Abortion Acts.

A student  immediately challenged him, enquiring why he was denying that the right to choose an abortion was a fundamental human right. He explained that he was not: he was simply talking about comparative constitutional law approaches. The student promptly reported my friend to the University authorities for (I would imagine) ‘gynophobia’. I’m pleased to say they took no action.

Now, I do believe that there are certain fundamental human rights, that should be protected by the courts. However, the content of rights are affected by the ideological struggles which precede and establish the widespread acceptance of their primacy and legitimacy. I wouldn’t deny that the courts can play an important role in establishing those norms. Brown v Board of Education, Roe v Wade were all paradigm shifting decisions.

But I’m inclined to believe that the best way to achieve grand philosophical twists, is by political activism: not by judicial fiat. The struggle for gay rights – for example – has truly been won, not when a court upholds the rights of an individual petitioner, but when a party fears that it will not win an election, if it pledges to deny equality to same-sex couples.

However, if that shift has not yet taken place, but the legal precedents all push in one direction, should a citizen be denied their rights? I find it hard to say that they should.