Mona Charen

Welcome to the Judgeocracy

...where the law school elite overrules majority rule

A COUPLE OF YEARS AGO, Judge Robert Bork authored a best seller called "Slouching Toward Gomorrah," in which he prophesied that this nation was rapidly ceasing to be a democracy and was instead becoming a judgeocracy (my term, not his).

If judges make the law, then the considered judgments of the people on how they wish to organize their lives and their society are reduced to, at most, advisory opinions to be accepted or rejected by the those with real power.

This is not an academic argument. In New Jersey last week, a judge accepted a settlement between the American Civil Liberties Union and the state's Division of Youth and Family Services. The agreement provides that gay and unmarried couples will have the same "right" to adopt children that married couples enjoy and, further, that any gay or unmarried couple who believe that they may have been denied joint adoption because of their homosexuality or marital status have the right to ask a judge to enforce the decree and award them legal fees.

What we have here are graduates of leading law schools who work for the ACLU persuading other graduates of leading law schools who sit as judges in Newark to disregard the tradition and law of this country in the name of their preferred policy outcomes.

It isn't as if the will of the people is difficult to discern here. Just last year, in September of 1996, Congress passed and the president signed (though at 12:50 a.m.) the Defense of Marriage Act. The act provided that for purposes of federal law, a marriage was to be defined as the union of one man and one woman. The act also sought to foreclose the possibility that judges, acting on their own in Hawaii, would legalize gay marriages and force the rest of the states, through the Full Faith and Credit clause of the Constitution, to recognize such unions. DOMA states explicitly that the Full Faith and Credit Clause does not require states to recognize gay marriages. (Hawaiians, by the way, decided to amend their state constitution in order to prevent their judges from legalizing gay marriage.)

The vote in the House of Representatives on DOMA was 342-67. In the Senate, the vote was 85-14 -- a clear statement of the popular will, one would think.

Why did the elected representatives go to such trouble to thwart the move toward legalizing gay marriages? There are many reasons, but primary among them was the knowledge that if gay unions were solemnized and sanctioned, then nothing could prevent gay couples from adopting children on an equal footing with traditional couples. How clever of the judge in New Jersey to leapfrog the whole matter of gay marriage and go straight to the meat of the matter -- the kids.

The New Jersey Gay and Lesbian Coalition calls the ruling "a victory for families." Lenora M. Lapidus, legal director of the New Jersey chapter of the ACLU, told the Associated Press that "the settlement guarantees that all couples seeking adoptions will be judged only by their ability to love and support a child."

In the past, when questions have arisen about gay rights, some of us have argued that permitting rights to gay couples inevitably undermines marriage. In New Jersey, that scenario is being played out. For not only do gay couples now stand on equal footing with married couples, but so do non-married heterosexual couples.

Love is enough. That is the message of the gay activists and others who seek to topple the existing standards on adoption. But it isn't. If love were enough, we'd give babies to 14-year-olds, and quadriplegics, and the insane.

This ruling guarantees that children in New Jersey will be placed in homes that are less stable and less emotionally healthy than is good for them. We have had a generation's worth of experience with "alternative" family structures, and we keep bumping into the inescapable reality that the traditional family is best.

But if judges continue to make our law and define our lives, perhaps the conclusions we reach are of no significance.