Fridae

When President George Bush announced that he wanted to amend the federal constitution to ban gay marriage, he reminded me of my less dignified moments when I lost debates in competitions. I would blame the topic, blame my luck, blame my teammates. My most vehement insults, though, were reserved for the judges.

President Bush and his supporters argue that their hands were forced when four 'liberal' and 'activist' judges on the Supreme Court of Massachusetts decided that the state's constitution demanded that same-sex couples be allowed to marry. Invoking the spirit of Brown v Board of Education, civil unions, they said, were not enough - even if they brought the same legal benefits.

But proponents of the Federal Marriage Amendment (FMA), defining marriage as being between a man and a woman, are being intellectually dishonest. In truth, they oppose gay marriage, full stop. They just don't want to say it because it's easier to fool people by couching discrimination as an issue of controlling a judiciary gone mad.

Never mind that fellow Republican Mayor Arnold Schwarzenegger went on Jay Leno's show saying that this was a matter for the courts to decide. Never mind that Mayor Bloomberg, also a Republican, has made similar remarks.

The reason why President Bush's rhetoric is bankrupt is because he doesn't understand what the role of the judiciary is in a system that balances it, the executive and the legislature on a co-ordinate plane.

The role of the judiciary is, and has always been, to say what the law is. Of course, this has limits. The judiciary does not rule on questions of policy. It is for the legislature to decide matters of social policy and to reflect democratic will in the relevant statutes, or in this case, the constitutional provisions. In other words, the judge's duty is to interpret the words of statutes that the legislature passed. It is not to make judgments on the social desirability of those laws.

What Hillary Goodridge and the other plaintiffs were asking the Massachusetts court to decide was whether the state constitution permitted (or demanded) the recognition of same-sex marriages. It was not to ask the court if it was a good social policy to allow gay marriage.

You can see the court struggling with this distinction in Goodridge. Chief Justice Marshall, writing for the court, displays extraordinary humility when she states clearly that the court's decision was not based on nebulous concepts of morality. She certainly did not see her role as affirming or negativing any one moral standpoint. That is a determination to be made by the legislature through democratic processes. Rather, the case turned on well-developed jurisprudence under the due process and equal protection clauses of the state (and federal) constitution.

Later on, her opinion analyses the question of equal protection under the weakest possible test. And even on this weak test, the Department of Public Health was unable to demonstrate how any of their reasons for denying marriage licenses were either legitimate or that denying such licenses would lead to the advancement of those goals.

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Serious readers of the court's opinion will know that there was nothing faintly activist or liberal in the way in which the court decided to extend the freedom of marriage to homosexuals. The court did what it was supposed to do. It said what the law was.

Another point to make is that it is wrong to assume that there is only interpretation possible on any word, sentence or statute. Commonsense tells us that even the plainest words can often bear two, maybe three different meanings. Interpretation is therefore, at bottom, a choice. It is a choice that the judiciary is well entitled to make. In doing so, judges are not only mindful of their overall role as the third co-ordinate branch of the government. They must also be aware that they are in fact, as Madison would say, an anti-majoritarian check. The role of the courts is to look out for the interests and rights of those who are not fairly represented in a democracy.

Had the court done what President Bush wanted them to do, that is, to uphold the denial of marriage licenses to homosexuals, it would - ironically - have been a violation of their prescribed function. They would have failed to follow precedent cases that clearly pointed the other way, and they would have been adjudicating whether same-sex marriages were moral, as opposed to legal. To have come down President Bush's way would have to been to dictate social policy from the benches - something President Bush himself argues is illegitimate.

Admittedly, the legislature and President Bush, are well within their own institutional competence to overturn the decision. Often, judges even say, "If we have decided wrongly, the legislature can always pass a new law." This is what is sometimes called a 'conversation' between the judicial and legislative branches.

If FMA advocates wish to push this through, they are entitled to do so. But they should at least have the decency to say that this is because they truly believe that marriage is a hetero-sexist institution. Obfuscating the debate by pinning blame where it doesn't belong is downright insulting to us, and dishonest. It improperly condemns the court for doing its job, and then confuses the public.

In Singapore, however, we need not worry about activist judges. Our Court of Appeal has, in recent years, asserted: "Parliament enacts the law of the land." The failure to consider seriously constitutional safeguards shows an extraordinary deference to Parliament and majoritarianism. As one writer has said, "Parliament is then supreme and constitutional supremacy is stripped to bare formality." (Thio, 1997) This, I believe, more than anything, is an abdication of the judiciary's role and a violation of its sacred duty to be a check and balance against the government and to protect the individual.

The scheme of a separation of powers - so integral in any democratic setup - was designed to avoid putting too much power in the hands of a single agency. By forcing courts to defer to majoritarian institutions like Congress or Parliament, or by having courts themselves acquiesce in this conspiracy, is to deny ordinary minority citizens the only route to petition change through non-violent means. No wonder then that several democratically elected mayors in the United States have taken to issuing marriage licenses to force the courts to take on this vital challenge in saying once and for all what the law really is.

On a personal note: as an fan of Jon Peter Lewis, I am urging all other viewers of American Idol to vote for him if you are in a position to do. Paul Tan may be contacted at tanpaul@hotmail.com.