Last edited: January 01, 2005

Legislating from the Bench

Family Research Council, December 3, 2002
From: Ken Connor, President

Itís a troubling sign that the Supreme Court yesterday agreed to hear arguments in a challenge to Texasí 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 courtís 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 courtís willingness to hear this case, however, is not likely an indication that it will show appropriate judicial restraint.

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