Last edited: February 06, 2005

‘Unaccountable Politicians’: Court Usurped States’ Legislative Role

Richmond Times-Dispatch, July 6, 2003
Box 85333, Richmond, VA 23293-0001
Fax: 804-775-8072 or 775-8090

By  Bob Marshall, Times-Dispatch Columnist

MANASSAS—Most people would agree that state legislators have, or ought to have, the authority to regulate or prohibit activities that have killed 450,000 Americans and will kill at least 1 million more in just a few years.

But there are six significant Americans who disagree. They have lifetime jobs, they answer to no one, and they alter all our lives.

They are U.S. Supreme Court Justices. Their peculiar vision blinds them to almost half a million caskets used to bury Americans whose early deaths were directly or indirectly caused by same-sex sodomy.

Last week six of nine Justices in Lawrence v. Texas found a privacy right to practice lethal behavior, even though the Constitution speaks only of a right to be free from unreasonable searches of “persons, houses, papers, and effects.”

But 17 years ago the Justices said it was constitutional for Georgia to have an anti-sodomy law. They told us their decision was right and we must obey it. So, were we right or wrong to obey the Court’s wrong decision? The Court also says it is reading the same Constitution that now requires it to issue a 180-degree reversal in Lawrence v. Texas. We are now to obey this new rule of law, and we should continue to trust and obey the Court. Hmmmm.

That aside, the six Justices cited everything but the Constitution to support their tortured conclusions, which are not limited to homosexuals having sex in private. Instead, they cited a gay history of sex in America by a founder of the Gay Academic Union, the ACLU, the 1955 American Law Institute model penal code, the European Court of Human Rights, and other extra-constitutional sources.

The Court now says making homosexual conduct criminal “demeans the lives of homosexual persons . . . is an invitation to subject homosexual persons to discrimination both in the public and private spheres . . . [and that] the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives.”

The Court did not define “home” or “adult” (yet it cited privacy rights of 13-year-olds), and was mum on whether schools would have to hire gay cross-dressing elementary schoolteachers. Homosexual groups plan to use the case to undermine Virginia’s heterosexuals-only marriage law.

In a related decision, the Court told Kansas to reconsider a 17-year sentence given to an 18-year-old for having “consensual” sex with a 14-year-old boy. Is this a pattern?

With these “hints” from the Court, a smart criminal defense attorney will use the Lawrence decision to defeat prostitution, bestiality, or sodomy charges involving an alleged “minor” whose liberty rights are protected by Lawrence v. Texas.

Justice Kennedy said such cases were not before the Court. But Justice Antonin Scalia’s dissent noted that most of the “opinion has no relevance to today’s holding.” He said, “State laws against bigamy, same-sex marriage, adult incest, prostitution . . . fornication, bestiality, and obscenity are . . . 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.”

Scalia said the Texas law “unquestionably imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours in a bakery.”

This will affect the 2004 General Assembly session.

It is legal to ask a stranger in a public park to go to a restaurant. It will be legal to solicit that same stranger for consensual sodomy or other unprintable acts because the behavior, as Attorney General Kilgore and Governor Warner now claim, is the law in Virginia.

What about the Boy Scouts who want their members to “be morally straight”? If their policy “demeans the lives of homosexual persons,” can they meet in public schools? Will Virginia sex-ed courses teach 14-year-olds about “fisting,” as was done in Massachusetts by homosexual counselors from the state’s Gay and Lesbian Youth Commission?

Clearly, some Justices are acting like politicians, so let us treat them like politicians. In Scalia’s words, the Court has “taken sides in the cultural war.”

We need a national constitutional amendment that allows the people to decide by vote to recall to private life these unaccountable politicians on the Supreme Court.

Jefferson said it was a “very dangerous doctrine” to “consider the judges as the ultimate arbiters of all constitutional questions.” And President Lincoln noted that, “if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation . . . the people will have ceased to be their own rulers.”

Either the people shall judge the judges, or we will cease to have government by the people.

  • Bob Marshall represents the 13th District in Virginia’s House of Delegates.

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