Msgr. Charles Pope is currently a dean and pastor in the Archdiocese of Washington, DC, where he has served on the Priest Council, the College of Consultors, and the Priest Personnel Board. Along with publishing a daily blog at the Archdiocese of Washington website, he has written in pastoral journals, conducted numerous retreats for priests and lay faithful, and has also conducted weekly Bible studies in the U.S. Congress and the White House. He was named a Monsignor in 2005.
Most were not surprised by the Supreme Court decision today. Court watchers who had attended the hearings earlier this year were rather certain that the mood of the court was to find a constitutional right to marriage and extend it to those with same-sex attraction.
I am not a lawyer and will not therefore speak to the legal demerits of this decision. Others, including the minority on the Court, can speak to that.
But as a citizen I wonder how we have come to a place in our legal and legislative system where unelected judges for life, who in effect answer to no one, can make such increasingly common and sweeping decisions regarding basic human institutions.
Increasingly in our nation, many are beginning to feel quite powerless over the most basic aspects of their life. Governmental decisions in both the executive and judicial branches of government are eclipsing and overruling plebiscites and laws crafted by and enacted by elected legislators, who are answerable to the American people. Judges are imposing, often at brisk speed, sweeping changes with little opportunity for appeal or redress. The wide use of executive power by presidents has also become wide and sweeping in the same matters.
The balance of power has shifted dramatically toward the judicial branch and judges who “know better” than the American people or their elected legislators.
Clearly there is a place for judicial review of laws and policies. But it is increasingly evident that the judicial activism of recent decades is way out of balance.
Sadly, both conservatives and liberals have often had recourse to courts for matters that really should have been handled in the giveand-take of the legislative process. Too many people have preferred to gamble with judicial fiats, rather than building political consensus. Too many legislators, and even the American people, have ceded this authority to nine individuals who answer to no one. This is not healthy.
It remains to be seen how this new constitutional right (never before known until now) will affect our religious liberties. Judge Kennedy’s assurances notwithstanding, I am not optimistic that within short order, large numbers of legal challenges to the Church’s right to refuse recognition and celebration of such unions will be eroded steadily, and at some point made illegal altogether. If you think I am alarmist, I ask only that you consider how many businesses and “wedding chapels” have already been fined for rejecting on religious grounds the demand to cooperate with the celebration of same-sex unions.
Remember this too: It is not just “the Church” that has a right to religious liberty. YOU have a right to religious liberty. Rather consistently local judges and others have said that religious liberty does not prevail for individuals who own businesses or engage in commerce. In effect, you can have religious liberty, so long as you don’t own a business. Here too there are legal nuances, but the fundamental trajectory is clear: Anyone who opposes the celebration of same-sex unions and lifestyle are going to be increasingly entangled in the courts and face more and more charges.
Less than ten years ago, predictions of today's legal landscape would have been laughed at as dubious. Those who envisioned it were called fearmongers and worse. But here we are. And pardon me for being more than a little concerned that the slope is going downhill faster and steeper than any of us care to imagine. Things are going to get very tough very quickly — not just for “the Church”, but for traditional believers and anyone who dares stand against what has become a juggernaut of judicial activism and rule from the bench.
Every American should be concerned by this. This is a sword that swings both ways.