Courts and Their Role in Society Essay

Excerpt from Essay :

Judiciary Role

The author of this report is tasked with discussing whether courts can help solve complex problems. Of course, the guiding documents and many of the amendments to the United States Constitution were written a century or two ago but these are the documents that are supposed to be guiding the decisions made by courts of all levels. This would range from district courts to circuit courts and all of the way up to the Supreme Court of the United States. What will be discussed and answered to in this report shall include the limits of litigation as compared to political debate and social limits, the prerequisites for a successful litigation reform effort, the proper role of the courts when it comes to public policy issues, whether the courts should keep their rulings narrow or make them broader, and whether court decisions can change public policy and/or society. While courts most certainly have their place and time when it comes to making or restoring order when it comes to the law, they should be careful to know what their job really is and they should also realize that even the highest courts in the land have their limitations when it comes to effecting social change.


The assignment parameters lay bare just some of the issues that are decided using Constitutional amendments and other portions. These issues include civil rights, voting rights, abortion rights, gender discrimination, affirmative action, LGBT rights, marriage equality, educational quality, sentencing of criminals and gun control. For the purposes of this report, the focus will be on LGBT rights including gay marriage. When it comes to any given case, LGBT-related or otherwise, there is an amendment or clause in the Constitution that clearly applies to what is going on. In other instances, the correlation is deemed to be implied and/or is subject to interpretation. For example, the Equal Protection clause of the United States Constitution is often what is held up as the clarion call that justifies things like gay marriage and other equal rights for LGBT people. However, there are also naysayers that suggest that if that clause could be applied in one instance, it could be applied in other instances that may not be so palatable or acceptable to society. For example, the recent Supreme Court case Obergefell v. Hodges effectively legalized gay marriage was seen as a shining moment or marriage equality and LGBT rights in general. However, some have countered that the same clause championed by the advocates for the decision that was made with Obergefell v. Hodges could be used to legally sanction other relationships. This obviously sounds absurd to many, but the question is not completely beyond the pale. For example, it is explicitly illegal in many jurisdictions for a man to have more than one wife at one time. The same is true when it comes to women having more than one spouse. There are other, and much more extreme and disgusting, examples that some have used such as bestiality and romance with objects. Others have said that "equal protection" can mean different things to different people. For example, prior law (in most of the country) was that a person could marry someone of the opposite biological gender. Some might say that this was upheld "equally" for both sexes since women could marry only one man and men could only marry one woman. Of course, critics of that line of thought would lash back and say that homosexuals and bisexuals (not to mention people of other gender orientations) should not be limited in who they can marry so long as there is only one marriage at one time for each person. More analysis along the lines of what the court does, why it does it and the logical strands behind it all will be coming later in this report (Beckwith, 2015).

As far as the limits of litigation go, the one thing that is never limited, sometimes unfortunately, is the ability to file a lawsuit. Even if it is completely frivolous and soulless, anyone can file a lawsuit for even the inanest reasons. What matters, however, is whether the lawsuit has any grounds via which the person suing might be victorious in a court of law. For example, many would say that prior LGBT rights-related cases had great amounts of merit because LGBT people were not being extended the same rights and privileges that heterosexual couples have enjoyed for generations. A judge will typically look over the situation, take testimony and come to a definitive conclusion as to whether the contract was breached and how to remedy the situation. In a contested divorce, the judge will decide who will get what assets and debts based on either fairness or equal division, depending on the state. However, those two types of cases and many other can get very contentious and controversial based on how much specificity (or lack thereof) the relevant legal documents have. Much the same thing can be attributed to the laws of the land. Indeed, lawsuits are filed against people, corporations and the governments of our land all of the time and the verbiage that does (or does not) exist in the law relative to the situation is often the guiding force of who wins, who loses and why. Indeed, that has been done in relation to LGBT based on existing verbiage (e.g. Equal Protection Clause) or verbiage that "should" be there (equal protection for LGBT people overall) (Hicks, 2016).

However, there are always limitations to this approach. Even to this day, the laws and regulations that apply to the LGBT community are mostly by court mandate or assertion rather than printed law. Indeed, there are states that have decided that the Equal Protection Clause protects LGBT people and their rights. Other states have disregarded that notion and made laws that assert the contrary or something else entirely. Other states and localities have just done nothing. Regardless, until the Obergefell decision, there was really no federal mandate or ruling of any kind that LGBT advocates could hang their proverbial hat on. The Equal Protection Clause, of course, is part of the Fourteenth Amendment to the United States Constitution (Rosenbloom, O'Leary, & Chanin, 2010).

When the proper precedent and/or laws do exist, litigation would be the easy and quick way to deal with extreme overreaches like that. However, many laws are less than clear and this can lead to a lot of legal fees being racked up and time spent wrangling about the law. A lot of cases come down to officials or people using discretion and there may not be a clause in the law that strictly allows or disallows what is happening. In many other cases, a person will technically subjugate themselves to another agreement and then will cry foul because they think their Constitutional rights are being violated. In light of the Obergefell ruling, litigation would easily be the best option where LGBT laws are not clarified or that run counter to the assertion made in the Obergefell decision. For example, a gay couple demanding equal rights would likely have to sue on the grounds that the precedent set by Obergefell and there is a very strong chance that the Supreme Court's Obergefell decision would be the guide, but it all depends on the circumstances.

Political debate and social movements have their own limitations and issues. However, they can do some good. For example, the social movements (of which there were and still are many) behind gay marriage have been pushing for their cause in every state and at every opportunity. It took quite a long time, but the prior-referenced Obergefell v. Hodges case was seen as a triumph for that movement. Political debate has led to great things as well. Even before Obergefell and the developments prior to it came about, many states were already starting to recognize the equal rights of gays and thus they have little to change even with the gravity of the Obergefell ruling. Other states, like the aforementioned Kansas, would be a different story.

To come back to litigation, there are some very fatal flaws that exist when it comes to our legal system. Things have become so nasty, there are many cases where a corporation or even a person, in some instances, will settle a legal case as soon as possible just because protracted litigation will be more damaging than fighting the case and trying to win. To state the obvious, this is a very damning thing to take note of when it comes to litigation. Further, there are people that cling to the idea that the legal sphere should be about "fairness" and not about what the laws do or do not say. This may sound like a good idea to some, but it is facetious and sheer lunacy to others. Indeed, the laws say what they say and they do not say what they do not say. For example, having a bathroom arrangement that allows…

Sources Used in Document:


Associated Press. (2016). With email probe nearing end, FBI may question Hillary Clinton. Retrieved 21 June 2016, from

Beckwith, R. (2015). Read the 7 Most Memorable Passages in the Gay Marriage Decision. Retrieved 21 June 2016, from

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