Is Lawrence Worse Than Roe?

There has been a lot of lot of talk since yesterday's Supreme Court decision in the case of Lawrence v. Texas, a dispute over Texas' law making sodomy illegal. The Supreme Court overturned that law by a vote of 6 to 3, saying that such laws "demean the lives of homosexual persons" and infringe upon their right to privacy.

Let me tell you right now: Lawrence is a devastating decision, worse than most people think -- and for reasons that haven't fully dawned on them yet.

I have to admit, the implications of this decision hadn't occurred to me yet, either, but after talking to my friend Professor Robert George of Princeton this morning, I can say that this is without question the most damaging decision handed down by the courts since Roe v. Wade -- one that will have even more far-reaching effects than its predecessor.

George is a political philosopher and a very smart guy. He pointed out a few things about the decision that I hadn't noticed. And because this decision is so huge, I wanted to make sure that I passed on his concerns to you.

First, a little background history. As you may already know, Roe v. Wade based its decision to make abortion legal upon a woman's right to privacy, which the court found in the 14th amendment in the Constitution. The problem is, the 14th amendment doesn't give a person a right to privacy. What the 14th amendment REALLY guarantees is that no state "shall deprive any person of life, liberty, or property, without due process of the law." You won't find a right to privacy here or in any other part of the Constitution.

The 14th amendment only protects rights by due process, meaning that they can't be taken from you except by formal procedures in accordance with established law. In other words, you can't be executed (deprived of life), jailed (deprived of liberty), or fined (deprived of property) without the government going through the proper procedure of arresting you, giving you a fair trial, and so on.

So what does this have to do with a right to privacy? Absolutely nothing. And yet this is what the Roe decision is based on. Legal scholars, both conservative and liberal alike, have denounced this faulty reasoning that they call "substantive due process." It's really a contradiction in terms: Instead of simply guaranteeing that you will receive certain treatment by the law, the law has been stretched to mean that you will also be guaranteed a certain RESULT.

What began in Roe has now come to fruition in Lawrence: A certain privileged class of actions is being protected from legal restriction by the Supreme Court. First abortion, now sodomy -- what will be next? Euthanasia?

It's up to the people to vote into effect certain laws through their legislature. It's the only fair way of guaranteeing that what the people want becomes the law of the land, rather than what a few justices on the Supreme Court want.

But this, George explained to me, is what happened in Roe v. Wade. The justices forced their hand to produce a certain outcome. Since then, the Supreme Court has avoided using the tricky (and completely false) "substantive due process" rationale in deciding cases.

The six justices who voted to repeal the sodomy law yesterday did so because they said the law produced an unfair outcome -- unfair because it discriminates against homosexuals.

But the law was enacted according to the rules of due process -- the people supported it, the state legislature wrote it, and the governor signed it. There is nothing unfair about the process it underwent in becoming law. If people today feel that the law is unfair or outdated, they can vote to repeal it just as they voted to enact it, and THAT would be a fair process.

But for the COURT to say that the law produced an unfair outcome takes this power from the people and puts it in the hands of nine Supreme Court justices. This was certainly never the intention of the 14th amendment.

Nevertheless, that's what the Supreme Court did. And not only that -- in his statement for the court, Justice Anthony Kennedy made his decision so broad that ANY case that comes before the court in the future could appeal to "substantive due process" to dispense with the law and get the outcome they want.

And that is what's really scary about this decision. With Roe, the decision applied only to abortion rights. But with Lawrence, the door has been opened for other kinds of sexual behavior to be exempted from restrictive legislation as well.

For example, if a case comes before the Supreme Court arguing in favor of incest, according to the Lawrence decision, there's no reason why incest should be outlawed. The court no longer has any principled basis for upholding laws that prohibit incest, bigamy, bestiality, you name it.

So what does this mean for the future? Well, think about this: Because Texas' sodomy law has been struck down, all the remaining states with sodomy laws will have to dispense with them as well.

And what about homosexual marriage? The Massachusetts legislature is considering that issue right now. If they decide in favor of it, any homosexual marriage contracted in Massachusetts has to be acknowledged in every other state.

With sodomy laws still in place, this wouldn't have been the case. No state is forced to accept contracts from another state that go against their own laws and policies. But now that the sodomy laws will be removed, no state has a legal defense against homosexual marriage. They'll all fall like dominoes.

The LAST HOPE for defeating homosexual marriage lies in a Constitutional amendment that explicitly defines marriage as the union of one man and one woman. The Alliance for Marriage, headed up by Matt Daniels, is leading the way in calling for the Federal Marriage Amendment to do just that.

If the Supreme Court finds the amendment unconstitutional -- which, thanks to Lawrence, they now claim the right to do -- then we're sunk. The homosexual agenda will have won the day.

And this is why it's absolutely CRUCIAL that Catholics, Evangelicals, and all social conservatives in America band together NOW to stop them. There has been infighting among the groups in the past -- some think the Federal Marriage Amendment is too strong, others think it isn't strong enough -- but we have to put those differences aside and make the best we can with what we have.

CRISIS ran an article on just this problem in our July/August issue last year, "Can Same-Sex Marriage Be Stopped?", encouraging people to take note of the slow change that is already beginning. With Lawrence decided, we can't spare another minute. Visit the Alliance's Website, www.allianceformarriage.org, to find out more about how you can help.

I hate to end on such a grim note before the weekend, but I wanted to get this out to you as quickly as I could. The sooner we understand the danger that marriage in America is in, the sooner we can act to save it.

I am an attorney and I have studied the Roe decision and read every word of it several times. The Roe decision was bad. It set a very bad precedent.

I have read this decision. There is language in this decision that essentially takes away the power of the states as well as congress to pass reasonable laws and puts the power in the hands of the Courts to overrule any law they wish by claiming that because the courts do not agree with that law, that it has no "rational basis" for being passed and is therefore unconstitutional.

This decision has wide rangning implications. First of all, I don't see how laws against prostitution or adult incest or polygamy or even drugs can withstand the courts ruling on the issue of "privacy." Further anytime there is a law that reflects religious traditions, the courts now have a new tool (other than the so-called "separation" clause) to attack it; they can merely claim that the law in question encroaches upon someome's right to privacy or some other dreamed up right and then note that since it was passed for an "irrational reason" -- i.e., it promotes someone's irrational religious beliefs (and of course all religious beliefs are irrational in the court's eyes), it is therefore unconstitutional.

The courts have stolen the constitutional legislative power from the states and from the people. We are now effectively ruled by an appointed aristocracy of nine overly-educated snobs with law degrees who think they know better than you.

If that is not a dangerous situation, then I don't know what is.

America (as we know it) died the day this decision was published. Read it. It is a manifesto for Judicial tyranny. Then weep.

Let's put that Jefferson quote in some context. Some history from a book Trapped in the Temple of Karnak: An Unexpurgated History of the Supreme Court by D. J. Connolly:

OUR SUPREME JUDICIARY DEPARTMENT During our Constitutional Convention some of the delegates feared that the United States Congress they proposed to establish could potentially outgrow the authority constitutionally alloted to it, usurping powers rightfully belonging to the other two branches. So extended debates were had on the subject of using the veto power to provide a check on Congressional excesses. The debates ended with agreement to empower the President to veto any law passed by Congress, subject to subsequent override by two-thirds majority vote in both Houses.
Several delegates weren't satisfied with this, and urged the Convention to empower the judiciary, as well as the president, to veto acts of Congress; and two different motions to this effect were introduced and debated. James Wilson, of Pennsylvania, moved that the veto power be held by the president together with "a convenient number of the national Judiciary." He thought it important that judicial power, as well as executive power, act to check the excesses of legislators. "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect," Mr Wilson said. After extended debate, the motion was rejected by a vote of 8-3
A bit later in the proceedings, James Madison, of Virginia, moved to insert, "all acts before they become laws should be submitted both to the Executive and Supreme Judiciary Departments, that if either of these should object 2/3 of each House, if both should object, 3/4 of each House, should be necessary to overrule the objections and give to the acts the force of law." This motion also went down by a vote of 8-3.
The record is clear and unambiguous; our founders decisively rejected the proposal that our "Supreme Judiciary Department" be allowed to veto laws it thought "unjust", "unwise," "dangerous," or "destructive." Our "Supreme Judiciary Department" has assumed that power anyway.
THE WEAKEST DEPARTMENT
Speakers at the Convention recognized that federal judges would refuse to enforce laws that were clearly unconstitutional. It was noted that some state judges had taken this position with respect to their own constitutions and their own state legislation, but only in cases where the constitutional violation was flagrant and clear. Under these conditions, the delegates seemed to approve of the practice, although their approval is not expressed in the Constitution.
The rationale for this practice was elegantly stated by Alexander Hamilton in Federalist Number 78; he was writing to allay concern that an independent judiciary following this practice would enjoy "a superiority of the judiciary to the legislative power." Hamilton, who had played a prominent role at the Convention, assured his fellow citizens that this was not the case. He explained that the U. S. Constitution would flow directly from the supreme authority of the people. Legislative acts under it would flow from limited powers the people had delegated to their servants, the legislators. Judges, who are also their servants, would be duty bound to explicate and enforce the law as they find it. When they find "an irreconcilable variance between (the Constitution and the statute) . . . the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Hamilton went on to say;

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to the will of the people, the judges ought to be governed by the latter rather than the former.

It goes without saying that, under our Constitution, judges have no legitimate power to substitute their personal assessment of the current "will of the people" for its earlier expression in the ratification of the various constitutional articles and amendments. That's what we have elections for. It also goes without saying that judges have no legitimate power to substitute their own policy preferences for "the will of the people." They are only our "agents," after all.
Earlier in Federalist 78, Hamilton had explained that the judiciary was the "least dangerous" branch of government, having neither "force nor will, but merely judgement," and was "beyond comparison the weakest of the three departments of power." That was the intention of the framers of the Constitution, and that was the intention of "We the People" when we allowed the Constitution to be ratified.
For a few years, that intention was actually complied with. In the early days of the Republic, the Supreme Court had to meet in a small room in the basement of the Capital. The first time it tried to flex its muscles and impose a doubtful precedent on "We the People," we slapped it down, overruling its decision in Chisholm v. Georgia by adopting the Eleventh Amendment.
It was hard to find prominent people willing to serve on the Court because the job lacked power and prestige. John Jay, President Washington's first choice for the position of Chief Justice, stalled for a while before accepting the appointment, because he hoped for something better. After accepting the job he resigned within a few years to become governor of New York. A New York newspaper characterized the move as a "promotion." It took Washington three tries to recruit a replacement.
However, our judicial branch did not long remain "the weakest of the three departments of power;" and its members soon began exercising "will" as well as "judgement." George Washington left office in 1797 to be replaced by our second president, John Adams. Both Washington and Adams were Federalists, as were early majorities in both houses of Congress. The Federalists turned out to be a little too dismissive of the democratic ideals Americans had fought for in the Revolution. Washington had kept their worst instincts in check and had retained the trust and deep affection of the people.
Under John Adams, however, the worst Federalist tendencies took center stage. They tried to run America more or less the same way the King and Parliament ran Great Britian. In the election of 1800, "We the People" denied John Adams a second term, electing Republican Thomas Jefferson to replace him; and we threw most of the Federalists out of Congress as well.
Adams and his friends in Congress used their last few months in office to pack the federal courts with Federalist politicians they hoped would expand judicial power to override "the will of the people." They appointed a new Chief Justice named John Marshall to take charge of the whole program. Marshall performed brilliantly; within two decades Thomas Jefferson was complaining that the "federal judiciary" was "an irresponsible body, . . . working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all (power) shall be usurped from the states".
A decade after that, Alexis de Tocqueville observed in Democracy in America that, " in no country are the judges so powerful as there" and "Federal judges decide upon their own authority almost all the questions most important to the country." It's never been clear where that "authority" came from; it certainly did not come from the Constitution.

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