Natural law judges are the only way to save the judiciary
June 23, 2020 (LifeSiteNews) – One reason conservatives give major importance to elections is that they know the selection of judges can impact law for decades. Thus, when President Trump selected two Supreme Court judges, many hoped that the Court would shift to the right.
The June 15 Bostock v. Clayton County, Georgia decision dashed these hopes. What legislators could not obtain in the halls of Congress, the conservative-dominated Court imposed on the American people.
The 6-3 court decision extended workplace protections to include sexual orientation and transsexual “identity.” It arbitrarily inserted these categories into Title VII of the 1964 Civil Rights Act. Thus, it transforms sinful behavior into a civil right protected by law and imposes second-class citizenship on those whose religious beliefs run contrary.
Betrayal by ‘conservative’ judges
What made matters worse is that conservative Justice Neil Gorsuch wrote the majority opinion that gave the LGBT lobby its victory. Bush nominee Chief Justice John Roberts also voted with the majority in the now-infamous ruling.
Even the feared Justice Brett Kavanaugh approved the merits of the move but said that Congress should have made the decision. No dissenting judge questioned the right or wrong of the matter. Their dissent only criticized judicial overreach. From a moral perspective, the decision was 9-0.
Thus, many are asking what went wrong with the process by which judges considered solid on major conservative issues, suddenly broke ranks and voted with the liberals. Others wonder how judicial candidates vetted by conservative groups like the Federalist Society could end up reading into the Constitution and American law things that were never there.
The decision makes clear that a complete change of judicial perspective is urgently needed.
Defective interpretations of American law
The reason why conservative judges have failed is that they have adopted defective schools of interpretation. Their role should be to apply the immutable principles of the law to the changing concrete circumstances of the day.
However, modern justices interpret the law by other means. Some take a constitutionalist approach to American law, based on a strict reading of the Constitution. Originalist and textualist judges interpret the law according to what they consider was the original intent of the founders or legislators.
While these and other approaches do tend to conserve some traditions, they are not anchored to an objective moral law but only in documents, opinions, and intentions. Judges come to believe that the law finds its origins in their opinions and speculation about these documents, not unchangeable norms of justice.
Judges must confront and reject modern law theories
The conservative judges must also confront the liberal conception of values-free law. American law is influenced by Enlightenment thought that tends to turn the legal order into systems of value-neutral contracts. These are supposed to work mechanically to keep society in order.
Within this amoral framework, a liberal judiciary is free to imagine its own legal orders based on distorted visions of freedom that now allow people to create their own realities. Court decisions then provide the tyranny to impose these fantasies upon the whole population.
When the law has no firm moral anchor, anything is possible, including granting privileged, protected status to immoral gender ideology. If this notion is not changed, important decisions will always be 9-0.
A law valid for all times and all peoples
At least, the disastrous decision makes clear the only path to victory.
The only alternative is to return to America’s higher law tradition anchored in natural law norms that do not change.
America was founded on a higher law tradition that reaches back to the Ten Commandments, which summarizes natural law. This perspective holds that the source of all law—whether customary, common, Roman, or statutory—is God and His eternal law.
Whether a person believes in God is immaterial, since this law is found in the nature of things, not in a sacred text. It was known by ancient peoples. Its universal character can be seen in Cicero, for example, who used the terms “eternal law,” “moral law,” or “natural law” to describe an objective moral compass that makes social order possible.
This natural law is the same for all peoples, places, and times, although its applications vary. It can be perceived in society by unaided reason. Saint Paul says it is written on the hearts of all, Christian or pagan (see Rom. 2:15).
Returning to America’s higher law tradition
The American legal system inherited a strong higher law tradition from English common law. Thus, a proposed change to a higher law is not an innovation but a return to what once existed.
It is not an invention like those now being imposed as law, as seen in the Bostock decision. Leftist ideologues are constantly proposing new legal changes based on socialist, ecological, and sexual agendas. History has shown how proposals like these run counter to human nature and result in socio-political disasters like communism and Nazism.
A natural law perspective comes from a proven order well-suited to human nature. It is not imposed but relies upon those natural regulating institutions inside society that always emerge when individuals resolve to unite in pursuit of the common good. Unlike the left’s ideologies, it cannot be regulated, stimulated, or legislated into existence. It is rooted in the social institutions of family, community, and faith. And although it applies to everyone, the Church is its best and most secure guardian.
The Bostock decision makes it clear that the only way to save the judiciary is through correctly oriented natural law judges. Present judges need to be informed by natural law. This involves returning America to whence she came. There needs to be a moral compass to counter the immoral one that now dominates and distorts all law and leads the country to anarchy and ruin.
John Horvat II is a scholar, researcher, educator, international speaker, and author of the book Return to Order, as well as the author of hundreds of published articles. He lives in Spring Grove, Pennsylvania where he is the vice president of the American Society for the Defense of Tradition, Family and Property.