Oct. 15, 2003
President Bush has proclaimed the week of October 12-18 as
Marriage Protection Week because it's becoming clearer all the time
that the institution of marriage needs protection against battering by
the courts. The gay lobbyists have made it clear that their aim is to
litigate to get activist judges to accord the status of marriage to
A public not well informed about the U.S. Constitution, an
acquiescent bar, and spineless Members of Congress have for years
allowed activist judges to expand their powers at the expense of our
elected representatives and in violation of the separation of powers.
The threat of a ruling that pretends to legalize same-sex "marriages"
should cause the American people to rise up and say "enough!"
Justice Anthony Kennedy opened the door to this travesty with his
far-out reasoning this year in Lawrence v. Texas. Citing a European
court ruling (since he couldn't cite the U.S. Constitution), he
overturned a U.S. Supreme Court precedent of only 17 years earlier
(Bowers v. Hardwick, 1986). This is the same Justice Kennedy who wrote
Casey v. Planned Parenthood in 1992 upholding legalized abortion on the
ground that the Court's legitimacy depends on sticking with the Roe v.
ruling of 19 years earlier.
This is also the same Justice Kennedy who thumbed his nose at the
votes of the majority of Coloradans in Romer v. Evans in 1996. He
exemplified judicial activism by invalidating an approved referendum
because he personally disapproved of the voters' "animus toward the
class it affects."
Protecting marriage against activist judges started in 1996 with
the Defense of Marriage Act (DOMA), which was overwhelmingly passed by
Congress and was so popular that it was signed by President Clinton.
Our first task should be to make sure that activist judges can't tamper
DOMA does two things: (a) In everything that is touched by federal
law or regulation, "the word `marriage' means only a legal union
between one man and one woman as husband and wife, and the word
`spouse' refers only to a person of the opposite sex who is a husband
or a wife." (b) Congress used its power under the "full faith and
credit" provision of the Constitution to legislate that no state can be
forced to give effect to any other state's recognition of same-sex
DOMA is a splendid, well-written law. But, alas, pressure groups
are threatening to file suit to persuade some activist judge to declare
it unconstitutional, and no one can assure us that this won't happen.
Therefore, Congress should immediately add a third section to DOMA
withdrawing jurisdiction from all federal courts to hear any challenge
to DOMA. Don't let anybody tell you that Congress can't tell the
federal courts what cases they can and cannot hear.
Article III, Section 2 states: "The Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such exceptions,
and under such regulations as the Congress shall make." Thus, Congress
can make "exceptions" to the types of cases the Supreme Court can
Article III, Section 1 states: "The judicial power of the United
States shall be vested in one Supreme Court and in such inferior courts
as the Congress may from time to time ordain and establish." Article
I, Section 8 states: "The Congress shall have power ... to constitute
tribunals inferior to the Supreme Court."
Thus, all federal courts except the Supreme Court were created by
Congress. Congress defined their powers and prescribed what kinds of
cases they can hear, and so Congress can redefine, re-prescribe,
uncreate, limit, regulate, and even abolish those federal courts.
The accusation will be made that withdrawing jurisdiction from the
federal courts is an attack on their power and indicates we don't trust
their decisions. That's exactly right, we don't, especially after
Casey, Romer and Lawrence, plus the lower court decisions on the Pledge
of Allegiance and the Ten Commandments.
Withdrawing jurisdiction from the federal courts won't prevent
activist state court judges from legalizating same-sex marriages, as
courts in Massachusetts and New Jersey are now considering. That will
require a constitutional amendment.
But DOMA could be dealt with immediately, by a simple majority
vote, and would send a clear message to the courts that the American
people are not going to submit to rule by unelected judges instead of
by our elected representatives.
As a practical matter, it should be easiest for Congress to move
rapidly before adjournment to pass Rep. Todd Akin's (R-MO) bill (H.R.
2028) to strip the federal courts of power to rule on cases involving
the Pledge of Allegiance. Akin already has 221 co-sponsors in the
House, and Senate Judiciary Committee Chairman Orrin Hatch is the
sponsor of the companion bill (S.1297).
Tell your Members of Congress to act now. We cannot let activist
federal judges get by with cooperating with the pressure groups that
are waging war on our most sacred institutions.
See our Alert: TELL CONGRESS TO PROTECT MARRIAGE.