American Judges Are Not Arbiters of Taste

The Defense of Marriage Act is the name of a law that has caused federal American authorities to not recognize homosexual marriages, even when contracted in a state that allows them. It is a bad and unjust law that has meant that homosexuals may only enter into second-rate marriages.

Of course I’m against DOMA.

But this wasn’t the question that the Supreme Court of the United States had to consider before their ruling last Wednesday. The question was not whether DOMA is a bad or unjust law. The question was not whether homosexuals should be allowed to get married, which you might be led to believe if you’ve followed Swedish media.

The question was whether DOMA was in conflict with the American Constitution and whether this law, instituted by elected politicians, should therefore be thrown out by lawmen outside the reach of the voters. It’s not an easy question, not even for those of us who are critical of DOMA. The judges in the American Supreme Court are there to make sure that politicians keep within the bounds of the Constitution. Their task is not to invalidate bad laws and approve laws they think are good. The founding fathers were not trying to create an enlightened despotism where the power is in the hands of black-cloaked jurists.

When the Swedish left celebrates the Supreme Court’s decision to declare DOMA unconstitutional, they are praising an order they have never wanted to see introduced in Sweden. Here, keeping the courts on a short leash has been seen as a basic democratic principle.

The Swedish left may need to be reminded too, that legal experts do not necessarily use their power to make radically progressive decisions. In Sweden, judges have decided that it is illegal to favor women and ethnic minorities at universities, even when politicians have passed laws for positive discrimination. Legal experts found that Reverend Åke Green had the right to preach that homosexuality is a cancer on society, even though politicians had passed laws forbidding hate speech against homosexuals. In short, lawyers may make decisions that the Swedish left doesn’t like. We limit their power since they, in contrast with politicians, can’t be held responsible in public elections.

Justice Scalia was one of three judges who voted against the decision of the Supreme Court majority to declare DOMA unconstitutional.

“But the court has cheated both sides,” he noted piercingly last Wednesday, “robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat. We owed both of them better.” DOMA should have been abolished, but by elected politicians, not by lawyers.