BY BERT BRANDENBURG & GAIL WHITTY
When the Washington State Supreme Court finally releases its long-awaited decision on marriage equity, it will kick off a fresh episode in the culture wars.
But in Washington, DC, it's re-run time. Faced with war, deficits, scandal, and a potential flu epidemic, federal lawmakers are preparing once again to try and amend the Constitution to ban same-sex marriage. The amendment doesn't just seek to change our founding charter to single out one group of Americans for discriminatory treatment. It would also strip state courts, like the Supreme Court in Olympia, of their historic function of deciding state family laws.
Why do backers of the Constitutional amendment want to deny certain Americans even a day in court to make their case? It has a lot to do with politics. Congressman John Hostettler has boasted that the marriage issue provides a "great political opportunity into what Congress can do to limit the courts." In fact, court-bashers actually welcome decisions on hot button issues, especially ones they disagree with, since controversy can be converted into donations and votes. Although they may act upset when courts decide high-profile cases, many politicians prefer that courts handle the toughest issues.
But protecting Constitutional rights is not always a popularity contest. After the 1954 Brown vs. Board of Education desegregation decision, lawmakers tried to impeach Supreme Court justices and strip the Court of jurisdiction over public education cases. When the Court struck down laws banning interracial marriage in 1968, angry opponents retorted that more than 70 percent of Americans disagreed.
The war on our courts ranges far beyond marriage; enemies of the judiciary are trying to turn the Constitution on its head by crippling the power of our courts to protect our rights. Last year, the House of Representatives passed a bill that would bar federal courts from even hearing cases involving the Pledge of Allegiance and the First Amendment. Another proposal would deny federal courts the power to hear any suit involving a governmental official's "acknowledgment of God as the sovereign source of law, liberty, or government." Any judge caught exceeding his or her jurisdiction could be impeached.
Harvesting votes by weakening the courts ought to make everyone nervous. Access to justice is too important to be tinkered with in the name of special interest politics. State and federal courts at all levels have a fundamental role in our democracy: to protect everyone's rights, even when some may disagree. Constitutional amendments should be reserved to address grave national problems - not prevent the courts from playing their role in our system of checks and balances.
Bert Brandenburg is the executive director of the Justice at Stake Campaign. Gail Whitty is an adjunct instructor for Seattle University's College of Business.