Judicial activism is OK for embryos but not for gays.

Science, technology, and life.
Aug. 27 2010 9:04 AM

A Distinction Without Deference

Judicial activism is OK for embryos but not for gays.

Honorable Royce C. Lamberth. Click image to expand.
Judge Royce Lamberth

Remember when conservatives were against judicial activism? It seems like just a few weeks ago. In fact, it was a few weeks ago. A federal judge had just struck down California's ban on gay marriage. National Review, among others, called it a "raw exercise of judicial imperiousness" by a judge who "smuggled in his own moral sentiments."

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Ah, but that was then. This is now. A different judge has ruled that the federal government can no longer fund embryonic stem-cell research. He bases his ruling on the annual Dickey-Wicker Amendment, which forbids federal funding of "research in which a human embryo or embryos are destroyed."

One problem with this rationale, I noted Wednesday, is that the federally funded research doesn't destroy embryos. It uses cells derived from embryos that were previously destroyed with nonfederal money. The other problem is that while re-enacting the Dickey Amendment every year, each house of Congress has twice passed legislation that authorizes the federal government to "conduct and support research that utilizes human embryonic stem cells." Presidents Bush and Obama have explicitly agreed that such research, within limits, should be funded. So it seems a stretch, to put it nicely, that the judge in this case interprets the Dickey Amendment as "unambiguously" prohibiting embryonic stem-cell research.

What does National Review have to say about this judicial adventure? It offers a defense from one of my favorite bioethics writers, Adam Keiper:

Over the past decade, both the executive and legislative branches (and both parties) have suggested that the Dickey-Wicker Amendment does not prohibit federal funding for embryonic-stem-cell research. … [But t]he Dickey-Wicker Amendment is the law of the land. The fact that Congresses and presidents have interpreted that law one way does not mean that the courts must defer to that interpretation. The political branches' interpretations of the law merit consideration, but there is nothing wrong with a judge disagreeing and applying his own interpretation of the amendment.

I'm sorry—could you repeat that?

The fact that Congresses and presidents have interpreted that law one way does not mean that the courts must defer to that interpretation. The political branches' interpretations of the law merit consideration, but there is nothing wrong with a judge disagreeing and applying his own interpretation of the amendment.

I'm sure we'll be hearing that argument again from NR when the gay marriage case reaches the Supreme Court.

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