WASHINGTON — The theory behind the American government's system of checks and balances seems simple: If one of the three branches of government starts to get too powerful, one of the others keeps it in check.

But the Founding Fathers' theory is starting to look to some observers to be just that — a theory.

“The separation of powers is off balance and off kilter,” said Deacon Keith Fournier, a constitutional lawyer and co-founder of Your Catholic Voice, a grass-roots activist group that organized a massive rally in Boston recently to support a state constitutional amendment protecting marriage.

People such as Deacon Fournier are concerned that the judicial branch is getting more and more power in interpreting the law and even legislating from the bench.

The three judges of the Massachusetts Supreme Judicial Court last year ordered the state to issue marriage licenses to same-sex couples beginning this May. The court's diktat has led many, including President Bush, to call for an amendment to the U.S. Constitution setting in stone the age-old definition of marriage as an institution between one man and one woman.

The U.S. bishops' conference recently reiterated its support for a federal marriage amendment, while Boston Archbishop Sean O'Malley voiced support for an amendment to his state's constitution protecting traditional marriage without introducing a provision for so-called “civil unions” for homosexuals.

But is a constitutional amendment the only remedy to runaway courts? Not at all, say scholars who talked with the Register.

Historical Precedents

Take the example set by Abraham Lincoln, for instance.

Hadley Arkes, a law professor at Amherst College in Massachusetts, pointed out in a recent talk at Harvard Law School that when the Supreme Court handed down the Dred Scott decision, it said “blacks could not be citizens of the United States with the standing to bring suits for their freedom in federal courts and that the owners of slaves had a constitutional ‘right’ not to be dispossessed of their property in slaves when they entered a territory of the United States.”

The 16th president limited the damage of that decision to Dred Scott, the slave who had brought the suit, and to no one else, Arkes said.

Lincoln's resolve was quickly tested. Two blacks in Boston — one a student seeking a passport to study in France, the other an inventor seeking a patent — were denied these based on the Dred Scott ruling that blacks were not American citizens. But Lincoln's administration quashed that understanding and the passport and patent were issued.

Arkes believes Massachusetts Gov. Mitt Romney should do likewise, directing that the Supreme Judicial Court ruling can apply only to the plaintiffs in the Goodridge case.

Courts Can't Enforce

What people forget, said Stephen Krason, a professor of political science and legal studies at Franciscan University of Steubenville, Ohio, and president of the Society of Catholic Social Scientists, is that the courts “have neither the power of the purse nor of the sword.” They cannot raise money to run their operations and they cannot enforce their own decisions.

This gives executives and legislatures certain authority over the courts. For example, Krason said, the president could conceivably dispatch the National Guard to guard abortion clinics from being allowed to carry out Roe v. Wade. He admitted that this is not a mainstream view but that it would be legitimate under the Constitution.

In Massachusetts' debate, Arkes said, “the governor might issue an order to registrars in the counties that the burden of litigation will be lifted from them, that all applications of marriage by couples of the same sex should be sent to the office of the governor and the Governor's Council [an advisory panel] until the policy of the state is settled by the Legislature.”

Under Massachusetts law, Arkes added, it is the Legislature alone that is authorized to define marriage laws.

Additionally, said Princeton University political science professor Robert George, judges can be impeached and Congress can regulate what goes on in the lower federal courts, according to Article 3 of the Constitution.

Yet while the academic arguments might be good, Deacon Fournier said given today's climate in the media and culture, it will be nothing less than a constitutional amendment that will be needed in the case of defending the truth of marriage, a prospect with which Arkes agrees.

One reason for that is that standing up to the courts “is a matter of political will and character,” George said — something lacking in most leaders today.

“Executives are concerned about the media depicting them as lawless — not submitting to the rule of law” if they were to take actions like Lincoln, George said.

Besides, Congress has no authority over state courts, he added. If Congress were to tell federal courts they couldn't consider, for example, marriage issues, they could be brought in state courts and the state courts could then make rulings on the federal Constitution.

Tough Road Ahead

A constitutional amendment will not be easy. It requires two-thirds of each house of Congress and three-quarters of the state legislatures.

Deacon Fournier's concern about the reality on the ground is borne out by what George and others have seen in the treatment the press gives to different situations. George cited two cases: Alabama's former Chief Justice Roy Moore and San Francisco mayor Gavin Newsom.

Moore challenged the prevailing atmosphere in regard to judges ruling on the establishment clause of the First Amendment by placing the Ten Commandments in the court building where he worked. He was ruled against by the federal district court and eventually lost his seat on the bench because of his defiance of the federal court order, which he thought unjust. He was also excoriated in the media as a man out of touch with reality.

In Moore's case, George observed, President Bush could have told federal marshals to disregard the ruling, but he didn't.

On the other hand, Newsom has defied state law and told court clerks to issue marriage licenses for same-sex couples. For this he has been praised in the press, while California's governor, Arnold Schwarzenegger, has said he would “have no problem” with a court decision expanding marriage rights to homosexuals.

In other words, George said, “liberal politicians appear to have the backbone” to challenge the law and the courts, but the conservative ones do not.

Thomas A. Szyszkiewicz writes from Altura, Minnesota.