Legislating from the Bench
Family Research Council,
December 3, 2002
From: Ken Connor, President
frcpub@frc.org
It’s a troubling sign that the Supreme Court yesterday agreed to hear
arguments in a challenge to Texas’ anti-sodomy law. The court upheld the
constitutionality of a similar state law in a 1986 Georgia case. Why is the
court now interested in revisiting the issue? The conclusion seems
inescapable: The court is looking for an opportunity to amend or repeal its
1986 decision. In that decision, the court held that the right to privacy did
not include a right to engage in homosexual sex, a "right" that was
never recognized in the constitutional history of the United States. The court’s
willingness to take on a case involving the Texas law just 16 years after it
ruled in a nearly identical case suggests that some justices view their role
essentially as political, manipulating the Constitution to conform to the
latest social fashions and fads. The court most infamously imposed its own
political opinion on the law in its decision overturning state statutes and
legalizing abortion-on-demand. The people acting through their elected
representatives have every right to craft policies aimed at regulating
behaviors that adversely impact public health and public morality. The court
should respect the separation of powers, defer to the legislative branch, and
resist the temptation to legislate from the bench. The court’s willingness
to hear this case, however, is not likely an indication that it will show
appropriate judicial restraint.
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