Judicial Jackhammers

Living together just wasn't enough for one Hawaiian couple. Denora Dancel and Nina Baehr decided they wanted the benefits of marriage. There was just one problem: Denora and Nina are both women. So they did something that's become standard operating procedure for those who differ with America's moral tradition: They sued. The Hawaii Supreme Court responded in a manner that's likewise grown increasingly common: It tossed out hundreds of years of established legal tradition and ordered the state to provide a compelling reason why marriage should be reserved for heterosexual couples. The case is still in process, but what a troubling question it raises. We now live in a world where settled moral traditions are no longer accepted as common sense. Instead, they have to be justified by a "compelling reason" in state legislatures. A generation ago, a case like this would have been unthinkable. It was simply understood that law should embody moral principles. This understanding was born more than a thousand years ago when Christianity spread to northern and western Europe. At that time, Europe was populated by pagan tribes who operated by bloody and primitive systems of law. The Church brought not only a new faith to the pagan world but also a new legal system, based on Christian notions of justice. Human law now had moral legitimacy because it reflected divine law. Obedience to the law became an act of piety. And because the law was derived from the same source as the people's new faith, the law was organic. That is, it was an integral part of the culture. It was not an alien rule imposed from above. This organic system became known as common law. But in the late nineteenth century, skeptics began chipping away at the link between law and morality. In fact, Supreme Court Justice Oliver Wendell Holmes did more than chip away: He used a judicial jackhammer to blast the link apart. A committed Darwinist, Holmes denied the existence of a Creator, undercutting the connection of human law to divine law. As a result, law was reduced to whatever judges claimed it to be. Legal decisions were unhitched from an objective moral standard and came to be based instead on the judge's subjective opinions and views. As Harvard law professor Robert Hutchins put it, what a judge ate for breakfast could be more influential than any legal principle. Justice was replaced with social engineering. This explains why rulings that would have been unimaginable a generation ago are now commonplace. Abortion on demand is now legal, and physician-assisted suicide is spreading across the country. Even same-sex marriages may soon become the law of the land. Disconnected from its source of moral authority, law is a wrecking ball for social vandals bent on smashing every moral standard. We need to help people see the consequences of separating the law from its Christian roots. We all need to understand how we ended up with a legal system that may soon allow Denora and Nina of Hawaii to exchange vows--not as man and wife, but as woman and wife.

10/23/96