Muddled Court Decision Undermines Marriage
Family
Research Council, June 26, 2003
Washington Update
By Ken Connor, President
The U.S. Supreme Court’s 6-3 decision striking down
Texas’s law against homosexual sodomy is a direct attack on the sanctity of
marriage. By extending legal protections to homosexual behavior, the court
majority not only struck down the 1986 precedent in Bowers
v. Hardwick that upheld Georgia’s anti-sodomy law; the court also
demolished the legal foundation of marriage. As Justice Antonin Scalia noted
in his scathing opinion in dissent, “State laws against bigamy, same-sex
marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable only in light of Bowers’
validation of laws based on moral choices. Every single one of these laws is
called into question by today’s decision; the Court makes no effort to cabin
the scope of its decision to exclude them from its holding.”
Indeed, the court opened the door to all of this under an
implicit “right to privacy” that appears nowhere in the Constitution, but
which the court invented in Griswold v. Connecticut. In that case, the
court “divined” a generalized right to privacy not in the actual text of
the Constitution, but in the “emanations” from the “penumbras” that
surround the words. Having thus invented a right, the court then proceeded to
legalize abortion on the basis of this figment of the imagination. Now, in Lawrence
v. Texas, the majority has extended the “right to privacy” to
embrace homosexual sodomy.
The jurisprudence that underlies today’s majority
decision in Lawrence is deeply flawed. Nothing has changed in the law
or Constitution in the 17 years since the court upheld anti-sodomy laws in Bowers.
Instead, Justice Kennedy notes that the Bowers decision has been
subject to “substantial and continuing criticism.” But as Justice Scalia
points out, the same is true of Roe v. Wade, yet the court reaffirmed Roe
in Planned Parenthood v. Casey. “Substantial and continuing
criticism” does not seem to bother the liberal majority with regard to
abortion, but the noisy homosexual political lobby sends the justices into
such a dither that they are willing to reverse a 17-year-old precedent—and
threaten marriage in the process!
Rather than root its opinions in the text of the
Constitution and the intent of the Framers, the majority simply raises a
dampened finger to see which way the cultural breezes are blowing. Justice
Kennedy, for example, referred to an “emerging awareness” regarding sexual
morality. But isn’t this what legislatures are for in a republican form of
government? It’s the role of the people’s elected representatives, not
unelected and unaccountable judges, to address emerging issues, to revise,
update or repeal laws to comport with changes in social mores and public
morals. This ruling is an example of breathtaking judicial activism. The
majority simply imposed its own private opinions and political desires on the
law.
Sen. Rick Santorum
was right last month when he observed that a bad ruling in Lawrence
would open the door to legalizing polygamy, same-sex marriage, consensual
incest and all other sexual arrangements by expanding the so-called right to
privacy. Nothing could more dramatically illustrate how critical the next
Supreme Court appointment(s) will be. Nothing less than the people’s right
to self-government is at stake. Will we rule ourselves, or be ruled by
black-robed oligarchs who disregard the law and the Constitution to impose
their own political agenda on the country? Or will we have judges of humility
and restraint, who respect the separation of powers and the people’s
unalienable right to govern themselves?
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