National Catholic Register


When Judges Get Too Big for Their Benches

Judges are throwing their weight around, and not just in America. By Benjamin Bull.


October 29-November 4, 2006 Issue | Posted 10/25/06 at 9:00 AM


Forget vampires and werewolves and Texans with chainsaws.

The scariest creatures abroad in this season of fright no longer bother to mask their intentions or cloak their agenda.

They long ago traded white sheets for black robes, and their scythes for gavels.

Of course, most judges bring nothing more nerve-wracking than a healthy respect for the law to their communities. But a growing number of American jurists are being possessed by an arrogance that is frightening in its implications. Even at Halloween, they are increasingly unwilling to recognize anything as hallowed — not the U.S. Constitution, not families, not even the human soul.

Many shuddered this summer when the U.S. Supreme Court, ruling in the case of Hamdan v. Rumsfield, defied explicit constitutional and congressional directives to accommodate a remarkably acrobatic interpretation of the Geneva Convention and embrace the currents fads of international law.

But then, international law is the haunt of a lot of overreaching judges:
E In Malaysia, the Federal Court is currently hearing an appeal from a woman who converted from the Muslim religion to Christianity. Lower courts have denied her right to make that transition, declaring that the woman cannot be legally married to a Catholic husband, and that her identity card must continue to designate her as “Islamic,” whether she holds to that religion or not.
E In Germany, the Supreme Court is subjecting parents who teach their children at home to heavy fines and imprisonment — even if their choice is based on religious concerns about what is being taught in state-registered schools.
E In Spain, where some 90% of the population is Roman Catholic, that Church could soon be prosecuted, based on its teachings against abortion and homosexual behavior. Leading cardinals at the Vatican warn that, with countries like Spain, Belgium and the Netherlands “exporting” their socially liberal policies, Catholics in Europe could soon be brought before international courts for refusing to embrace politically correct dogmas. 

— In California, a judge for the U.S. Court of Appeals for the 9th Circuit told families who protested the indoctrination of their primary school children with sexual materials that parents had no right to obstruct a school from teaching their kids about sex. In fact, that they had no authority over anything the school might choose to teach children during school hours.

It’s not hard to connect the dots on what these cases have in common — they all deny a fundamental, common-sense, historically recognized morality. In each case, the religious liberties of the individual are sublimated to the authority of an institution — a government, a school, the emerging juggernaut of pro-homosexual activism.

But even more disturbing is the sheer arrogance of courts that would purport to curtail the religious beliefs of a woman’s soul, the authority of loving parents over their own children or the truth about homosexual behavior. 

When did judges stop interpreting the law and start investing themselves with authority not just to find the facts, but to anoint the Truth — determining, by judicial fiat, when life begins, how much first graders should know about sex, the authority of holy writ?

In the increasing rush of so many American judges to embrace the sweep of international law, one wonders what powers these jurists still believe are beyond them. If they hold absolute trump over the Constitution and the Scriptures, they can:

E overrule presidents in matters of war, pastors in matters of theology and parents in matters of moral instruction; and

E count themselves the ultimate arbiters not only of “legal” and “illegal,” or even of “right” and “wrong,” but of the eternal verities.

Then the world will not be enough. 

Divine truths and essential liberties cannot be erased by the thud of a gavel. Americans know that courts, like governments, draw their “just powers from the consent of the governed,” and when judges run amok, citizens tend to remember the “separate and equal station to which the laws of nature and of nature’s God entitle them.”

The truth of these laws was self-evident to the writer of the Declaration, and remain so for most of us. That they remain elusive for so many jurists in other parts of the world is reason enough for American judges to rein in their enthusiasm for international law, as well as some of their own more self-indulgent rulings.

Authority doesn’t come from a seat at the bench. It comes from a sure knowledge and enduring respect for those laws of nature and of nature’s God. Denying and defying those laws may bring applause from one side of the international legal community, but it won’t secure truth or justice for anyone.

Benjamin Bull is chief counsel for the Alliance Defense Fund,

and former executive director of the

European Center for Law and Justice.