Thoughts on Equal Access to Justice

Friday’s decision by the United States Supreme Court finding a fundamental right to marriage between same-sex couples once again illustrates the importance of access to the courts for individuals, as well as for the very success of the American experiment in democracy.

This seemingly anti-democratic decision by nine unelected life-tenured lawyers to invalidate multiple validly-enacted state laws and state constitutional provisions is a prime example of what many decry as “legislating from the bench.” The language of Justice Kennedy’s decision is instructive as to why the Constitution requires no less:

Many who deem samesex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, [. . . ] But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. [. . . ]

‘[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.’ [. . . ], Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decision making. [. . . ]

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. [. . . ] An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ [. . . ]

This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’

Obergefell v. Hodges, 576 US _____ (2015).

This decision illustrates again why access to the courts is so fundamental to individual liberty as well as to the success of our tripartite system of government.

Unfortunately, the cost and complexity of legal proceedings too often bar access to the courts.

That is why I am dedicated to providing reasonably-priced legal services and to assisting individuals and businesses in gaining access to courts and administrative agencies, whether it be to assert their fundamental civil rights, to redress wrongs, or to establish and enforce private contractual and legal obligations.