Saturday Evening Judicial Reiew Post #10
The final ramification of the “right of privacy” issue we’ll discuss for now, is the issue of homosexual marriage.
In Lawrence v. Texas in 2003, the Supreme Court overruled Bowers v. Hardwick of 1986, and basically imposed their own political will in striking down the Texas law forbidding homosexual sodomy. In doing so, they used Justice Stevens’s original dissent written for Bower v. Hardwick when he wrote,
“The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
In so doing, the court basically thumbed their noses at every state law and the elected representatives of those states, who had written laws prohibiting sodomy.
Justice Antonin Scalia countered their argument in writing,
“This effectively decrees majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational-basis review.”
Justice Scalia concluded his dissent in Lawrence v. Texas by writing the following:
“These three cases; Bowers, Romer, and Lawrence, demonstrate some undeniable and unpleasant facts that need to be considered if traditional marriage is to be preserved. The Supreme Court is clearly in the business of vetoing state (and federal) legislation by inventing new and increasingly more absurd justifications. It does not feel bound by the Constitution or even precedent. It is abandoning the constitutional framework that supports the moral foundation of our laws. In the future, statutes and even state constitutional provisions that uphold the public’s moral consensus and traditions will be open to challenge.”
Mark R. Levin has writtin in the book Men in Black,
“There are essentially two options available to the elected branches of government to prevent the judiciary from seizing the ultimate authority to define marriage—to amend the federal Constitution, or for Congress to pass a law denying the federal courts jurisdicition to rule on this subject.”
The first option was tried, and on July 14, 2004, the Senate blocked it by voting against a procedural motion which never allowed it to come to the floor for a vote. Levin writes again, “A week later Representative John Hostettler of Indiana sponsored the Marriage Protection Act, which would strip jurisdiction from all federal courts over the Defense of Marriage Act. The bill passed 233-194.”
House minority leader Pelosi decried the act citing Marbury v. Madison, in effect ceding power to the judiciary over the constitutionality of congressional acts. Levin quotes Hostettler who responded, “Anyone [who] actually reads the Constitution and has a basic understanding of grammar and the English language in general can find the fact that the Constitution grants the Congress the authority”.
The issue is currently stalled, and as Levin says, “will ultimately determine whether Congress has the will finally to defend it’s constitutional role as the public’s federal representative body”.
All quotations above are taken from Men In Black, written by Mark R. Levin. The book can be purchased by clicking on the link to your left.
As we move on from the “right of privacy” issue next week, one should by now understand the supreme importance attached to getting President Bush’s judicial nominees confirmed by an up or down vote in the Senate. It is imperative for us to have judges in our courts who will be strict constitutionalists when deliberating such monumental issues.
