Sat | Dec 5, 2020

Peter Espeut | Classic case of pot calling the kettle black

Published:Friday | October 30, 2020 | 12:15 AM

In the Westminster system of government, the role of the legislative branch (as its name suggests) is to enact laws promoting social order and good governance. The way we do it in Jamaica, the source of all our legislation is the executive branch (the Cabinet) which develops the laws and sends them to Parliament for passage. In some systems (like monarchies and in the United States of America) the king or the president can issue a decree or executive order which has the force of law.

The third branch of government – the judiciary – can interpret existing laws beyond their direct content to create new law. In Jamaica, I can recall a few instances where learned justices have declined to do so, stating instead their preference for Parliament to pass legislation to give effect to new law, rather than the courts acting to create new law (judicial activism).

Roe v Wade case

The Supreme Court of the United States (SCOTUS) of America has not been so reticent. In the celebrated Roe v Wade case (1973) the SCOTUS ruled by 7-2 that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many US state and federal abortion laws, and in the process reshaped American politics.

In 2015, SCOTUS by 5-4 in Obergefell v Hodges ruled that the fundamental right to marry is guaranteed to same-sex couples by the US Constitution, and required all 50 states, the District of Columbia, and the Insular Areas to perform and recognise the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities. This closest of split decisions indicated that there was considerable legal opinion to the contrary; if one US Supreme Court justice had voted the other way, the result would have been quite different.

The judgment in Obergefell v Hodges is based on Section One of the Fourteenth Amendment to the US Constitution, which states ( inter alia) that no state shall “deny to any person within its jurisdiction the equal protection of the laws”. Because the law makes no distinction between male persons and female persons – all are equal – then (the court ruled) any two persons of whatever sex or gender should be allowed to do whatever any male and female person can do, including contract a marriage.

In my column ‘Time longer than rope’ published in this newspaper the week after the decision in Obergefell v Hodges I wrote:

“Maybe SCOTUS will soon make a ruling declaring it a breach of the US Constitution that same-sex couples cannot have children. Clearly, science and biology are unfair and homophobic.”

I went on to say that:

“In the years to come, new US presidents will come along, and new Supreme Court judges will be appointed, and Obergefell v Hodges will be overturned. Men and women are equal before the law, but the fact is that they are not biologically equal; the scientific and biological differences between men and women do have legal ramifications, which this simplistic SCOTUS decision has not considered. Let us see how long it will take for this illogical decision to be overturned.”

NOT YET OVERTURNED

Well, the decision has not yet been overturned, but this week Judge Amy Coney Barrett was sworn in as a member-for-life of SCOTUS, cementing for many years to come – a 6-3 majority of so-called ‘conservative’ justices on that court.

There have been howls of protest from the LGBT and pro-abortion lobby who would have wished to do to SCOTUS exactly what Donald Trump has done: pack it with judges of their own liking! The pot is calling the kettle black!

Surely, the rightness and wrongness of an action cannot be reduced to the beliefs of the judges in the case: change the judges and you change the morality? Judicial activism inevitably leads to the erosion of the reputation of the judiciary.

In Jamaica, our judges have been wise and prudent to avoid using the Bench to make law. Long may it be so!

Peter Espeut is a sociologist and a Roman Catholic deacon. Send feedback to columns@gleanerjm.com.