Dear Colleague:
Good Supreme Court appointments are the most likely way of preventing
same-sex "marriage" from being imposed on America.
Steven W. Mosher
President
PRI Weekly Briefing
11 February 2005
Vol. 7 / No. 6
Stopping Same-Sex Marriage
By Joseph A. D'Agostino
Can the unprecedented innovation of same-sex "marriage" be stopped? By
one method only: The replacement of leftist anti-democratic Supreme Court
justices with ones who respect the Constitution and republican
self-government.
In this country, the vast majority of people oppose same-sex marriage.
Majorities of both houses of Congress oppose it as does our President. No
state legislature has approved it or seems likely to. Every ballot
initiative opposing it has passed with a substantial margin of victory,
even in liberal blue states. Since the United States of America and each
one of her states officially have republican forms of government, how can
this novel legal privilege be established in the face of these facts?
Last week, a New York judge reminded us that we do not live in a republic,
at least not when the cultural revolution promoted by anti-life and
anti-family elites is concerned. State Supreme Court Justice Doris
Ling-Cohan decided that somehow, the state constitution of New York
required same-sex marriage. The case is being appealed (the New York
Supreme Court isn't supreme). It resembles the case in which the
Massachusetts Supreme Court decided to force same-sex marriage on that
state last year.
Nothing in the U.S. Constitution forbids same-sex marriage. However, such
state court decisions do invite federal intervention since these court
decisions do violate the Constitution, which says in Article IV, Section
4, "The United States shall guarantee to every State in this Union a
Republican Form of Government. . . ." There are different ways to define
"republic," but I would think that a republic must be minimally defined
here as a state in which laws are decided upon by elected representatives
of the people. Given the U.S. Supreme Court's history of changing laws at
will, most obviously in its completely unconstitutional Roe v. Wade (1973)
decision, it is unlikely that any federal court challenge to
anti-republican state judges' same-sex marriage decisions would succeed.
At least there is some resistance in the United States to such tyranny.
Canada's parliament will apparently give in to decisions made by courts
there and extend marriage benefits to same-sex couples later this year.
But how can the courts here be resisted?
President Bush could simply refuse to enforce any federal court decision
imposing same-sex marriage on the country, which would be in accord with
his oath to uphold the Constitution. Presidents have refused to enforce
court decisions in the past. State governors are similarly empowered when
it comes to state courts. It has been a long time since a President has
refused to enforce a major federal court decision and it seems unlikely
that Bush would have the courage to do what so many of his modern
predecessors did not.
Congressional Republican leaders stand ready to bring the Marriage
Protection Amendment, which would define marriage as between one man and
one woman, to the floor of both houses. President Bush supports this
amendment to the Constitution, and it seems that a majority of both houses
now do as well. Yet the chances of its passage are low. A constitutional
amendment requires a two-thirds vote of both houses, and under the present
political paradigm, 67 senators would never vote for such an amendment.
Perhaps a political earthquake of enormous magnitude will change that
paradigm, but as affairs now stand, there will always be enough socially
liberal senators to stop any such amendment.
Another possibility could be removing the federal courts' jurisdiction
over state marriage laws, which would at least isolate same-sex marriage
state-by-state. The 1996 Defense of Marriage Act (DOMA) already tries to
prevent states from having to recognize same-sex marriages performed in
other states, but a federal judge could easily declare DOMA
unconstitutional any day-and under the U.S. Constitution's clause
requiring states to grant "full faith and credit" to the legal acts of
other states, that judge could be right based on legal precedents.
Last year, the House passed the Marriage Protection Act of 2004 sponsored
by Rep. John Hostettler (R.-Ind.). The Senate didn't. Hostettler's bill
would remove federal courts' jurisdiction over DOMA, saying, "No court
created by Act of Congress shall have any jurisdiction, and the Supreme
Court shall have no appellate jurisdiction, to hear or decide any question
pertaining to the interpretation of, or the validity under the
Constitution of, section 1738C or this section." Congress restricts the
courts' jurisdiction all the time. But same-sex marriage is considered a
fundamental civil rights question by America's rulers, who clearly are
intent on imposing same-sex marriage by any means necessary. Under
Hostettler's bill, the Supreme Court would still have original
jurisdiction over lawsuits against DOMA-and in any case, the federal
courts using the 14th Amendment's equal protection clause could easily
declare both it and DOMA magically "unconstitutional," a word that has
come to mean "anything fashionable liberals do not like."
That leaves Supreme Court appointments as the most plausible way to stop
same-sex marriage. A Supreme Court decision on the question is likely
still years away. Some people may doubt that even the current court would
impose same-sex marriage on the country, but Justice Antonin Scalia has
already warned us in his dissent to Lawrence v. Texas (2002), in which the
court invented that criminalization of sodomy violated the Constitution:
"One of the most revealing statements in today's opinion is the Court's
grim warning that the criminalization of homosexual conduct is 'an
invitation to subject homosexual persons to discrimination both in the
public and in the private spheres,'" wrote Scalia. "It is clear from this
that the Court has taken sides in the culture war, departing from its role
of assuring, as neutral observer, that the democratic rules of engagement
are observed. . . . [T]he Court says that the present case 'does not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter.' Do not believe it.
"More illuminating than this bald, un-reasoned disclaimer is the
progression of thought displayed by an earlier passage in the Court's
opinion, which notes the constitutional protections afforded to 'personal
decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education,' and then declares that
'[p]ersons in a homosexual relationship may seek autonomy for these
purposes, just as heterosexual persons do.'"
If left-wing anti-republican members of the Supreme Court pass away or
retire soon enough and pro-family Americans do enough to pressure
President Bush into appointing justices who support the Constitution,
same-sex marriage can be stopped. Otherwise, it likely cannot.
Joseph A. D'Agostino is Vice President for Communications at the
Population Research Institute.
PRI
P.O. Box 1559
Front Royal, VA 22630
USA
Phone: (540) 622-5240 Fax: (540) 622-2728
Email: jad@pop.org
Media Contact: Joseph A. D'Agostino
(540) 622-5240, ext. 204
_________
© 2005 Population Research Institute. Permission to reprint granted.
Redistribute widely. Credit required.
_________
If you would like to make a tax-deductible donation to PRI, please go to
https://pop.org/donate.cfm. All
donations (of any size) are welcomed and
appreciated.
_________
To subscribe to the Weekly Briefing, send an email to:
JOIN-PRI@Pluto.Sparklist.com
or email pri@pop.org and say "Add me to your
Weekly Briefing."
__________
The Population Research Institute is dedicated to ending human rights
abuses committed in the name of "family planning," and to ending
counter-productive social and economic paradigms premised on the myth of
"overpopulation."