Virginia C. Armstrong, Ph.D., National Chairman, Court Watch

This is "Marriage Protection Week," an event resulting from cultural and constitutional forces that a few years ago would have been unthinkable to most Americans. The latest attack on marriage is the U. S. Supreme Court's egregious decision in Lawrence v. Texas, where six Justices threw out the Texas prohibition on sodomy. In Lawrence, six Justices argued that "Persons in a homosexual relationship may seek autonomy for these purposes (i.e., 'marriage and family relationships'), just as heterosexual persons do." Lawrence clearly opens the door to homosexual marriage and legal status for similar homosexual arrangements. Such unnatural and immoral arrangements, in turn, so convolute the concept of marriage as to render it meaningless. Lawrence therefore poses the gravest judicial threat to marriage in American history. But the American people and the U. S. Congress have clear and extensive constitutional authority to countermand this decision. Given the current pace of cultural and constitutional deterioration in America, the exercise of this authority should be viewed as obligatory, not simply optional. Surveying just a few of the fatal flaws of Lawrence shows why.

Analysis

1. The "right to homosexual conduct" is allegedly rooted in the Constitution's guarantees of "personal autonomy/freedom." But "personal freedom" cannot be severed from a broader value system from necessary to give definition and priority to "freedom/autonomy." If such a severance is attempted, as by the Court in Lawrence, there is no moral difference between using one's "personal freedom" to murder another person or to save another's life.

2. The Court's effort to defend its decision rests on a foundation of sand, including the arguments that:
   1. Constitutional text, tradition, and history are trumped in current Court decision-making by "our laws and traditions in the past half century." Not only does this premise sweep away centuries of English and western legal and moral moorings, but it leaves current American law in chaos. "The last fifty years" include not only "laws and traditions" favorable to homosexual conduct, but those opposing it. The Court's pro-morality decision in Bowers v. Hardwick (1986) and limitations on "personal autonomy" in Washington v. Glucksberg (1997), plus the fact that in 1960, all 50 states outlawed sodomy, militate against the creation of a "right to sodomy" and in favor of laws restricting sodomy.

   2. "Global moral and ethical standards" must now be considered in American constitutional interpretation. But no such standards exist. The Moslem view of marriage and morality is substantially different from the libertine view of the Court majority, for example. On the other extreme, to speak of the Hindu concept of "the dignity of man" (a revered American principle) is an oxymoron.

   3. There is no reason to support sodomy laws other than " 'animus' toward homosexuals." This amazing Court conclusion is supported by no proof whatsoever. Furthermore, it is a stigmatic insult to the countless numbers of Americans who oppose homosexual conduct, not because they hate homosexuals, but because of their sincere, deeply held moral and/or religious values. It illustrates that those who profess horror at "hate speech" directed toward homosexuals are themselves guilty of the most pernicious hate speech toward moral Americans.

3. Thomas Jefferson wrote that "Our peculiar security is in the possession of a written constitution. Let us not make it a blank paper by construction." The Lawrence case makes the Constitution a "blank paper." This lamentable act embodies a blatantly unconstitutional act of personal and political discretion by six Justices, who virtually ignore constitutional text and tradition. Such judicial usurpation of power not only bodes badly for morality and marriage in America, but also advances the dangerous probability described by Edward Gibbon in The History of the Decline and Fall of the Roman Empire: "the discretion of the judge is the first engine of tyranny."

Actions

Step #1: As an intermediate move toward countermanding Lawrence and curbing the courts, Congress can, and should, remove from federal court jurisdiction issues concerning the 1996 federal Defense of Marriage Act. DOMA defines and defends "marriage" in the traditional Judeo-Christian manner. Providing such additional protection for marriage from a judicial attack by either the Supreme Court or lower federal courts is a step in the right direction and does not preclude more extensive protections in the future. Article III, section 1 of the Constitution clearly authorizes Congress to establish and empower lower federal courts; Article III, section 2 of the Constitution grants Congress power over the "appellate jurisdiction" of the Supreme Court (virtually all cases reach the highest court by this route). Congress has exercised this authority numerous times in the past. Ample precedent exists for more court curbing now.

Step #2: In the long run, a constitutional amendment is needed to protect more thoroughly marriage and the family. Two amendments already in the Constitution were enacted to undo Court decisions--the Eleventh and Sixteenth Amendments. Constitutional and cultural forces mandate additional amendment now.