Focus on the Family

Cause for Concern (Judicial Philosophy)

Activist judges are rewriting our Constitution, exercising authority they don't have to overturn the will of the people, and trampling on our existing freedoms.

by Focus on the Family Issue Analysts

In addition to usurping legislative authority and violating the principle of "separation of powers" that lies at the very heart of our Constitution, judicial activism poses one of the greatest threats to the moral foundation of our country and to the religious freedoms of its people.

An Ominous Trend

As liberal courts continue relatively unchallenged in their quest to impose a radical social agenda on the nation, the damage already done should move us to concern and then action. The following are examples of the consequences of abandoning the proper role of judges in favor of legislating from the bench:

  1. Abortion. Abortion is a national tragedy. Since Roe v. Wade was decided in 1973, it has been estimated by the abortion industry itself that more than 45 million babies have been aborted. That horrible decision was itself a travesty of legal reasoning, as even liberal constitutional scholars have readily admitted; yet, it was made possible by an earlier (and equally horrible) Supreme Court decision in Griswold v. Connecticut that created a so-called constitutional "right to privacy." That "right of privacy," the Court asserted, was not found in the text of the Constitution or amendments but in the "penumbras, formed by emanations" of the Bill of Rights.

    Neither of these decisions can be explained or justified by constitutional standards, although "living Constitution" advocates will try. And, if more liberal justices are appointed to the Supreme Court in the next few years, it is entirely possible that existing state and federal laws regulating certain aspects of abortion practice, such as parental notification, informed consent and partial-birth abortion bans, will be struck down as unconstitutional – erasing laws which have saved thousands of lives over the years.

  1. Homosexual "Rights." Lawrence v. Texas was the 2003 Supreme Court decision that declared homosexual sodomy to be a protected "privacy right" under the Constitution, even though the Supreme Court had only 17 years earlier declared it legitimate for a state to criminalize it. One can draw a straight line from the activist domino toppled in Lawrence to the Massachusetts same-sex marriage decision that same year to the California Supreme Court's imposition of same-sex marriage in 2008. The California court went so far as to equate homosexuality with race, sex or religion, as far as constitutional protection is concerned.

    As outrageous as that may sound, we have learned from painful experience over the last several years that homosexual "rights" already trump the First Amendment's religious liberty protection where the two collide. Because of the success of the homosexual agenda in the courts, we have seen the following losses on the religious liberty side:

  1. Religious Liberty. In 1947, the Supreme Court decided to drastically alter its First Amendment jurisprudence by misusing Thomas Jefferson's "wall of separation between church and state" metaphor, in effect using it to replace the First Amendment's "establishment clause."

    Since that 1947 case, Everson v. Board of Education, the Supreme Court has ventured into a litany of increasingly conflicting, confusing and restrictive religion clause decisions that effectively stifle the free exercise of religion in the public square, turning the original meaning of the First Amendment on its head. Instead of keeping the government from interfering with the free exercise of religion, the "wall of separation" has insured that the federal government – via the courts – is now firmly entangled in every conceivable situation where religion touches public life.

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