By Dubious Means
Quick judicial fixes undermine our faith in democracy
A current example of this bad judicial habit is the December 20 Vermont Supreme Court decision mandating marriage or domestic partner benefits for homosexuals. The ruling came on the basis of a misty "common benefits" clause in the state Constitution (government is "instituted for the common benefit, protection and security of the people"). As Jonathan Rauch of the National Journal writes, "To read this clause as offering clear or explicit grounds to mandate marriage or domestic partner benefits for homosexuals is a stretch, to say the least." Serious and contentious issues call for more than quick little judicial stretches or fixes. An important social decision should not be imposed from above on the basis of a vague, throat-clearing passage that no Vermont legislator ever imagined would be bent to such a purpose.
Another bit of judicial fixing is converting a private association into a public accommodation for the benefit of a constituency that wants in. The New Jersey Supreme Court managed to turn the Boy Scouts, a private swimming club, and Princeton's private dining clubs into public accommodations. Richard Sincere, a libertarian and gay activist, made more sense than the court. He argued that forcing the Scouts to accept gays "threatens all of us who want to set standards for our organizations--including gay men and lesbians." That would seem to apply to private dining clubs, as well as to more obviously bigoted old-line country clubs. The Jersey court's commitment to inclusion is admirable. Its legal tactics are not.
Quick and dubious fixes, whether legislative or judicial, clearly undermine faith in any democratic system. The motives of the fixers are often the highest, but we should know by now that noble sentiments can do just as much damage as tawdry ones.
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