Last edited: January 25, 2005

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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