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THE COURTS AND THE CULTURE WAR

A culture war is taking place in Canada in which the courts are attempting unashamedly to re-shape Canada to suit the vision of its appointed unaccountable judges.

This culture war became glaringly apparent in 2003 when the liberal judges on the BC and Ontario Courts of Appeal, ignored the fact that since time began and in every culture and in every major world religion, marriage is the union between a man and a woman. Instead, the courts declared that marriage also includes a union between members of the same sex. Nothing illustrates the destructive power of judicial tyranny more than that decision.

The Canadian court decisions on same-sex marriage have now leaked their poisons into the U.S., where on November 18, 2003 the Massachusetts Supreme Court, relying heavily on the Canadian courts, in a 4-3 decision, stated that same-sex couples in that state were legally entitled to wed under the state constitution.

Former U.S. Presidential candidate, Gary Bauer, now President of the organization, American Values stated:

For anyone who has not understood the cultural struggle today, this is the perfect illustration. Four robed individuals are attempting to seize power from the people of Massachusetts and their elected officials and order a cultural outcome of their choosing. These unelected judges would try to impose what no elected legislature would dare consider. And in fact, they are ordering the unprecedented destruction of marriage despite tremendous public support for the key building block of society.

The courts in effect are snatching away the voice of the people, overriding it for their own version of "social progress."

U.S. Judge Robert H. Bork is a pivotal figure in this hideous culture war misshaping U.S. and Canadian societies. Formerly a circuit judge for the U.S. Court of Appeals for the District of Columbia Circuit, in 1987 he was nominated by President Reagan to the U.S. Supreme Court. After a concerted smear campaign by special interest groups, his nomination was not confirmed and a new word entered our language. To "bork" someone is to launch a relentless and systematic attack on a candidate or nominee, especially through the media. Social conservatives regard Robert Bork as an eloquent spokesman in a decaying world.

Judge Bork has written a new book Coercing Virtue in which he extensively discusses the takeover by the courts of the country's culture.

Below is an edited version of an interview with Judge Bork that appeared in Meridian Magazine (Nov. 19, 2003). His comments and reflections apply directly to the situation in Canada as well.

Q. In your recent book you describe a judiciary that has taken on enormous power and systematically overturns the voice of the people. Judges have become the agents of cultural change-what many of us would call cultural decay. Are there no checks and balances upon them? Did the Founding Fathers create a flaw in the system that would allow a runaway judiciary to become unelected legislators?

A. There is a flaw. The Founders had no idea of what a court could become. The courts they knew were modest in their ambitions and in what they ruled on. They did not foresee a court that assumed the power to make law. For that reason they didn't provide any significant checks and balances with respect to the judiciary. Nobody has the means of checking the judiciary. [Editor's note: We do have in Canada S.33 of the Charter (notwithstanding clause) that is not being implemented.]

Overlay this activist court with a culture that is increasingly permissive and doesn't like to make moral judgments, and you get a picture of where we are going as a society. The court becomes a crucial part of the development of a culture of radical individualism where nobody has the right to criticize anything based on morality.

Q. What does judicial activism mean?

A. The term is bandied about so indiscriminately that it requires definition. Judges engage in activism when their decisions cannot plausibly be related to the constitution they claim to enforce. Such imperialism is now characteristic of most Western nations. That suggests the problem is not due simply to some unfortunate appointments to the Supreme Court. It is inherent in men and women given power without democratic accountability.

Q. What can people do about this? Are we just to sit back and watch while the courts restructure our world?

A. People do resist some of the things that are taking place. They pass laws, for instance, against pornography, and the court wipes those out. One thing that could be done is to get judges that understand the judicial role, which is much more modest than their current behavior would suggest.

Q. We received a letter from a reader who said she had worked hard to pass Proposition 22 in California defining marriage as between a man and a woman and wondered if a court could undo all her effort, was it worth it? When judges snatch the voice from the people by negating their laws, does this sap the will of the people? Does it teach them that they are powerless to govern themselves?

A. One of the horrible things about the abortion decision is that it came from the judiciary. In all other western nations, it is a legislative decision. Our court has taken it away from the people - including the horror called partial-birth abortion.

The predisposition of people toward homosexuality lies in a spectrum. Some people in their formative stage can be lured into that life, and that's too bad because it is a miserable life. We ought to talk about the impact homosexuality has on a person's psychology instead of always talking about other things. The rates of psychic illness and the rates of attempted suicide are 3 or 4 times as high among homosexuals. The usual response to these facts is that it is because they are discriminated against. However, in countries like the Netherlands and Belgium where same-sex marriage is allowed, these disparities in mental health still exist.

Then there is the question of disease which is rampant among homosexuals. We owe it to young people to preserve them from entering into that lifestyle, and the only way to do that is to preserve a difference between hetero and homosexuality.

Marriage would be completely demeaned by allowing homosexual marriage. Why is it anything special if people can just sign up for it based on sexual activity? Homosexual relationships are not usually characterized by fidelity. The rate of promiscuity among them is much higher. Heterosexuals bear a lot of the blame for what has happened to marriage. Admitting that does not mean we should go the extra step and destroy it altogether.

Q. What can people do as they watch their world make this drastic social shift?

A. … the public must be alerted that their culture is being systematically subverted by a permissive, individualistic, non-judgmental world-view driven in the courts. Now you can show oral sex on cable television, you can show computer-simulated child pornography. It is not just an isolated bad decision coming from the courts to drive this viewpoint, but a systematic progression.

Q. Why has this liberal philosophy flourished while conservatives seem asleep at the wheel?

A.Liberals are more aggressive, but in addition to that, conservatives do not control the primary means of education. Liberals control the universities. They award professorships. They control the news media, who are uniformly left. People denounce Fox News as terribly opinionated. It is hated not because it is conservative, but because it is not liberal, and that is enough to get it denounced.

Liberals control media, radio, television, many church bureaucracies, many clergymen, museum staffs, foundation staffs, and Hollywood. These outlets of education are all far to the left and, of course, they have the rewards to give to young people.

Q. Is there a way to reverse this so that social conservatives have more influence?.

A. I have no idea. If I knew, I would be out there explaining how to do it. Irving Kristol said, "There is no culture war. There used to be, but the other side won." Kafka said, "There is hope, but not for us." T.S. Eliot said, "For us there is only the trying. The rest is not our business." Of course it is our business, that's why we try. You do battle wherever you can do battle, and there's no point in giving up.

Q. Where does the cultural war find its worse expression?

A. Antipathy toward religion. The biggest divide between so-called intellectuals and everybody else is on religion. They are indifferent to or very hostile toward religions. It is perfectly clear and has been spelled out in Philip Hamburger's book Separation of Church and State. There is no possible ground for this wall of separation, but the court moves ahead obliterating religion from the public square. Religion accounts for civility and self-restraint in our society, which is vanishing as religion has been marginalized and pushed to the sidelines of the debate. The Supreme Court has played a large role in doing this.

Q. If the courts are taking a legislative role and trampling something as important to most people as religion, why, as the polls show, do they generally hold the Supreme Court in such high esteem?

A. They think the Court decides according to principle while legislators operate out of expedience. They don't understand the courts or the nature of what is happening.

Q. Is it possible to help people understand that as the courts go, the culture goes? That they need to pay attention to what kind of judges their candidates support?

A. I don't know if the people are ever going to be educated enough to realize that they are being ruled by liberal judges. They say that they are speaking in the name of the Constitution and it is a revered document, so people believe it must be so. Even conservatives, if they like something, think it must be in the Constitution. I got in a bitter debate with some conservatives who felt that a ban on abortion must be in the Constitution. Whatever you feel about abortion, it is not in the Constitution. It has nothing to say on the subject. Conservatives often share the sins of the liberals, it is just that they are losing.

Q. You say that too many activist judges are seeking to thrust the views of the intellectual elite on the rest of us. Who are these people?

A. The world-view has a shape. It is utopian. They have a version of virtue they want to cast upon us. This class, the intellectual elite, are not distinguished by any particular intellectual ability. Hollywood's Barbra Streisand and news media's Peter Jennings are not particularly known for their intellectual accomplishment, but they believe they have the vision for how things should be and they are going to shove it down the throat of the rest of us.

One time I was debating at the University of Michigan and said the Supreme Court had gone too far in removing certain decisions from local communities. A man from the American Civil Liberties Union (ACLU) got up and called me a fascist. So it had come to this. Letting the people vote is fascism, but having a judge make their laws for them is democracy?

Q. So they consider the rest of us a bunch of hapless rubes waiting to be enlightened and reshaped by them? What can we do?

A. I don't know if it can be turned around, but I intend to cause as much pain as I can on the way out.

I haven't got a solution. One can't foretell the future, but something has to change.

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