What is the proper role of judges in defining marriage and the family?
Explanation: The definition of marriage and the law of the family traditionally have been questions for legislatures. In recent years, however, the power of the people to define marriage and the family through the elected branches has been challenged.
Just yesterday, Massachusetts Attorney General Martha Coakely filed suit against the federal government seeking to have the Defense of Marriage Act struck down as unconstitutional. The Defense of Marriage Act was enacted by Congress in 1996 and was signed by President Clinton. The Act states that for purposes of federal law, marriage means only a legal union between one man and one woman as husband and wife. The Act also preserves the rights of the several states to recognize, or not recognize, marriage licenses issued by other states.
Judge Sotomayor does not have a record on the role of the courts in defining marriage and the family. However, she has celebrated the idea that "change - sometimes radical change-can and does occur in a legal system that serves a society whose social policy itself changes." See Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996-1997). The context of her comment suggests that this "radical change" comes from the courts.
[read more]
