Despite the disappointing news from the Supreme Court in last year's decision
striking down laws against sodomy and homosexuality (which will be discussed
later in this Report), there nevertheless is much encouraging news from
across the nation in a number of other areas. In the pro-life arena there is
probably more good news than at any time since Roe v. Wade legalized
abortion in 1973.
Consider some recent findings:
- A Time/CNN poll found that 65 percent of Americans now believe that
life begins at conception.
- A Newsweek poll found that just 24 percent of Americans believe that
human life begins when an unborn child is "viable,"Ě and only 11 percent believe
that human life does not begin until birth.
- A Gallup poll found that 61 percent of Americans want abortions completely
ended or greatly restricted, while only 38 percent still support abortionon-
demand. In fact, 53 percent now believe that abortion is morally wrong- ď up dramatically from only two years ago when only 45 percent believed so.
And an even more recent Gallup poll of teens found that 72 percent believe
that abortion is morally unacceptable with only 19 percent supporting abortion-on-demand.
The shift in the nation's attitude toward abortion is especially evident among
- A Gallup poll found that 56 percent of women now believe that abortion
is morally wrong- ď including a majority of women of childbearing age. (This
is significant, for in previous polls, the younger the woman, the less pro-life
she was; however, pro-life views are now growing steadily among younger women.
In fact, a poll by The Polling Company showed that 18-24 year-olds are
now the most pro-life group among women except those over the age of 65.)
- A Time/CNN poll found that 53 percent of women of childbearing age
(18-35) even believe that abortion is "murder."Ě
- A poll conducted for the proabortion Center for the Advancement of Women found
that of the top ten priorities cited by women, keeping abortion legal ranked
last. In fact, only 30 percent supported abortion-ondemand while 51 percent
supported restricting abortions to allow only for three exceptions (rape, incest,
or physical life of the mother in danger).
These recent polls confirm what the 2002 election results already demonstrated:
pro-life candidates are no longer at a disadvantage with voters- ď not even with
women voters. In fact, in 2002, pro-life candidates actually enjoyed a 7 percent
advantage with voters. (For more information on the 2002 election results, see
the Winter 2003 WallBuilder Report at www.wallbuilders.com.)
Why is America steadily becoming more pro-life? What is causing this change?
Undoubtedly there are many factors, one of which is the fervent prayers offered
across the nation in recent years. Another is the diligent efforts of so many
citizens to protect life through law as well as to provide alternative services
for those who have unplanned or unwanted pregnancies (i.e., crisis pregnancy
centers, adoption services, etc.). A third factor is the efforts of congressional
leaders such as Sen. Rick Santorum (R-PA), who personally took on the mission
of educating the nation about partial-birth abortion (infanticide) and its barbarities:
he purchased air time in major television markets simply to show the public
how well developed the child is at the point of a partial-birth abortion as
well as to explain the ghastly procedure itself.
In addition to these three reasons, national news services offer others. For
example, Spectator suggests:
Ultrasound technology's widespread use has already planted the seeds of
destruction for the abortion-on-demand movement currently dominating the Democratic
Party. Al Gore's campaign consultant and super-feminist Naomi Wolf admitted
as much in an article she wrote for the New Republic back in 1995 warning
of cognitive dissonance from personalizing wanted babies in ultrasound films
and dehumanizing unwanted children as "masses of protoplasm."Ě Grainy black
and white ghost images floating across a screen are being replaced by the
crystal clarity of unborn baby photos like the ones seen in last year's astonishing
General Electric advertisements.
Newsweek similarly notes:
Once just grainy blobs on a tvmonitor, new high-tech fetal ultrasound images
allow prospective parents to see tiny fingers and toes, arms, legs and a beating
heart as early as 12 weeks. But while these images can make parents' hearts
leap for joy, they also pack such an emotional punch that even the most hard-line
abortion-rights supporters may find themselves questioning their beliefs.
. . . When specialists can do lifesaving surgery in utero, fetuses that once
might have been terminated now have a shot at a normal life.
And National Review suggests:
Advances in embryonic technology and prenatal medicine, respectively, yield
new insights such as the recent discovery that extremely young fetuses can
feel pain (which led to the perfectly serious suggestion that perhaps the
unborn could be anesthetized prior to being aborted).
Whatever the reasons for the change, the public's growing support for the protection
of unborn life is now revealing itself in public policy.
Unborn Victims of Violence Act
One such example is seen through laws protecting the unborn from criminal violence.
National attention recently has been focused on these laws because of the notorious
Laci Peterson murder case in California where prosecutors charged the husband,
Scott, with two murders- ď that of his wife, Laci, and the other of their unborn
son, Conner (eight months along in Laci's pregnancy). Pro-abortion advocates
vigorously oppose the dual charges against Scott, arguing that since the baby
was not yet born, it was not a person and therefore could not have been "murdered."Ě
However, the nation no longer buys this argument:
- A Fox News poll found that 84 percent of Americans believe that a double
homicide charge could properly be filed against Scott Peterson.
- A Newsweek poll similarly found that not only do 84 percent of Americans believe
that prosecutors should be able to seek a homicide charge on behalf of a fetus
killed in the womb but 56 percent also believe that the charge should be available
at any time during the pregnancy- ď including immediately after conception. Only
9 percent of Americans believed that an unborn child should never be recognized
as a crime victim (the position taken by pro-abortion advocates).
Twenty-eight States (including California) already have fetal homicide laws
on their books, and mirroring this trend in the States, a bill has been introduced
in the US Congress that would make it a federal crime to kill a wanted unborn
child. That bill- ď the "Unborn Victims of Violence Act (UVVA)ď was introduced
in the House (HR 1997) by Rep. Melissa Hart (R-PA) and in the Senate (S 1019)
by Sen. Mike DeWine (R-OH). The difference between the State and federal laws
is that the federal law would protect the unborn child at any stage of
development. (Currently, only fourteen of the twenty-eight States offer the
same level of protection; in the other fourteen States, the unborn child is
protected only beyond the "embryonic stage"Ě- ď anywhere from the seventh to the
twenty-fourth week of development, depending on the State law).
Not surprisingly, Democrats in Congress overwhelmingly oppose this proposed
law. So far, only one of the 49 Democrats in the Senate is supporting the bill,
and only ten of the 205 Democrats in the House. Instead, the Democrats have
filed an alternative bill, sponsored by Democratic Rep. Zoe Lofgren (CA): the
Motherhood Protection Act (HR 2247), that creates a special criminal offense
for harming a pregnant woman but refuses to recognize the unborn child as a
separate crime victim. Significantly, not only do congressional Democrats disagree
with 84 percent of Americans on this issue, they even disagree with the majority
of their own political supporters (a recent Newsweek poll shows that
even 54 percent of Democrats support a murder charge on behalf of an unborn
victim of violence).
Democratic leaders in Congress apparently realize just how out of step they
are with their traditional constituencies on the life issue. For example, recent
polling among Hispanics (now the largest minority group in America and long
considered a traditional Democratic constituency) shows that sixty-five percent
of Hispanics support ending or restricting abortions. These high pro-life numbers
so frighten Democratic leaders that pro-abortion Democratic presidential contenders
Sen. Joe Lieberman and Rep. Dick Gephardt have removed all references to their
support for abortion from their Hispanic websites. Rai Rojas, head of the Hispanic
division of the National Right to Life Committee, commented on this Democratic
duplicity: "While their English-language web pages very boldly pronounce their
pro-abortion views, they know full well that their position on abortion isn't
something they can sell to Hispanics."Ě
So why would so many Democrats oppose the UVVA? Because it establishes in law
the personhood of an unborn child. The bill defines an "unborn child"Ě (or "child
in utero"Ě) as "a member of the species homo sapiens- ď at any stage
of development-ď who is carried in the womb."Ě Planned Parenthood president Gloria
Feldt warns, "If they are able to make fetuses people in law, with the same
standing as women and men, then Roe will be moot."Ě
President Bush strongly supports the UVVA and is urging its passage. It is expected
that the bill will pass the House, for the House already passed the same legislation
in 1999 and 2001. However, the difficulty rests in the Senate where Senate Democrats
may (again) attempt to kill the bill. Nevertheless, there remains a slight chance
that the bill can become law; the American people certainly want it so.
Partial-Birth Abortion Ban
One other popular bill expanding protection for innocent human life was the
federal ban on partial- birth abortions. That ban passed both the House and
Senate with overwhelming numbers: (282-139 in the House, and 64-33 in the Senate).
It was eventually signed by the President last November 5th, thus providing
protection for what the President described as a "live boy or girl"Ě who was
just "inches from birth."Ě
The potential impact of the ban may go well beyond simply halting partial-birth
abortions. According to a report from the pro-abortion group, National Organization
of Women (NOW), the ban on partial-birth abortions could have devastating effects
on the entire abortion industry-ď effects greater than even most pro-life advocates
realize. now warns that the ban would:
. . . prohibit most common and safe abortion procedures. . . . The language
of [the bill] does not limit the ban to procedures performed after viability,
nor is the ban limited to abortions performed in the third trimesterď as
some news reporters mistakenly repeat. Because various provisions are so vague,
physicians may stop performing abortions altogether if the bill becomes law.
What a wonderful possibility! However, the bill probably will not have this
great an effect; nevertheless, it is nice to know ď at least according to pro-abortion
advocates ď just how much damage they believe the ban on partial- birth abortions
will cause the entire abortion industry.
Regrettably, this ban was passed only over active and organized Democratic opposition.
You may recall that this ban had been passed multiple times by the Congress
over recent years but in each case was vetoed by President Clinton; and the
Senate Democrats were always able to coalesce enough of their members to sustain
his veto. Altough the passage of the ban was expected to be prompt under the
Republican House, Senate, and President, it was not; Democrats utilized some
unusual delay tactics.
As is common with nearly every bill, there were some differences in the language
between the House and Senate versions. This always requires a conference committee
to be convened, with conferees appointed from each chamber to reconcile the
language differences. Conferees are selected from both parties, with the majority
party (currently Republicans) having the most conferees on the committee. All
of this is standard procedure ď except the fact that Democratic Senators (led
by Sen. Barbara Boxer and Sen. Tom Harkin) refused to appoint their designated
members to the conference committee. They were (again) using an unprecedented
technical procedure to prevent moral progress from being made in the nationď despite the fact that 70 percent of the nation was eager to see the ban passed.
After months of delay, an agreement was reached under which the Democrats finally
appointed their conferees. The conference committee quickly resolved the language
differences, and the ban became law ď but only after hundreds of more lives
were lost to this gruesome procedure because of the unusual obstruction tactics
In the 2002 election, Democrats lost seats in both the House and the Senate
to prolife contenders. In fact, in the Senate, ten freshmen were elected: eight
Republicans and two Democrats; all eight Republicans were pro-life while the
two Democrats were not. This pro-life advantage resulted not only in the Senate
majority being given over to Republicans but also in an increase in the total
number of pro-life Members in both the House and the Senate. Perhaps this next
election will produce similarly favorable pro-life results until there is a
large enough pro-life majority in the Senate to halt the procedural roadblocks
of the proabortion Senate Democrats, who are currently filibustering nearly
a dozen pro-life nominees to the federal circuit court of appeals. (A total
of 60 votes in the Senate will be required to overcome the current obstructions).
Notwithstanding the continuing and rigorous opposition from pro-abortion advocates,
the movement in the nation on the life issue is definitely in the right
direction ď and the improvement over the last decade has been at a rapid rate.
However, the biggest obstacles to advancing additional significant policy changes
remain unchanged: (1) the federal courts (they previously overturned State laws
banning partial-birth abortions and have now intervened to prohibit the federal
ban from going into effect) and (2) the pro-abortion Senate Democrats. However,
both of these problems eventually will be overcome.
"Weary not in well-doing, for in due season we will reapď if
we faint not!"Ě Galatians 6:9
Ten Commandments Displays
While there have been dozens of rulings striking down Ten Commandments displays
(another indication that federal judges wellversed in original constitutional
understandings need to be appointed to the courts), no ruling has been more
publicized than that against Judge Roy Moore in Alabama. In that case, the 11th
Federal Circuit Court of Appeals ruled that a 5,280 pound granite monument of
the Ten Commandments could not be displayed in the Rotunda of the Alabama State
The ACLU, Americans United for Separation of Church and State, and the Southern
Poverty Law Center filed suit against the Ten Commandments display on behalf
of three attorneys. And why did those attorneys want the monument removed? They
alleged that they had been "personally offended"Ě by the monument and "as a result,
suffered direct injury."Ě A three-judge panel of the 11th Federal Circuit Court
of Appeals agreed with them and ordered the display removed.
In order to reach their decision, the panel of federal judges transformed themselves
into an ecclesiastical council of theologians. They decided that the version
of the Commandments posted by Judge Moore was a "Protestant"Ě version and that
"Jewish, Catholic, Lutheran and Eastern Orthodox faiths use different parts
of their holy texts as the authoritative Ten Commandments."Ě
Strange! I thought that "Do not kill"Ě and "Do not steal"Ě meant the same regardless
of the version! In fact, I am not aware of any person in America who, after
seeing the granite monument, would cry out, "I have just seen the 9th command
forbidding perjury, but it is a Protestant version, so I cannot obey it, for
I am a Catholic (or a Jew, or a Lutheran, or whatever)."Ě (Despite the fact that
Lutherans began the Protestant Church the 11th Circuit Court somehow does not
consider Lutherans to be Protestants.)
The 11th Circuit had ignored an elementary principle of law ď and thus a fundamental
responsibility of the courts: establish the spirit and intent of a law before
making any ruling about it. Signer of the Constitution John Dickinson had explained
the importance of this legal principle:
[N]othing is more certain than that the forms of liberty may be retained
when the substance is gone. In government, as well as in religion, "the letter
killeth, but the spirit giveth life."Ě 2 Cor. 3:6
The Ten Commandments themselves actually were the result of God's demonstration
of this principle. When God delivered the Commandments, He told Moses "According
to the tenor of those words I have made a covenant with you"Ě (Exodus
34:27). That is, God Himself declared that the Ten Commandments were merely
the general theme (the tenor) of what He wanted- that is, "Don't steal,"Ě "Don't
kill," "Don't commit perjury,"Ě et al, were simply the summation of over
600 laws given at or about the same time.
That the Ten Commandments simply represent the spirit of the civil and criminal
laws was made clear by an elderly Texas friend, Esther Armstrong. Despite her
advanced years, Esther maintained a ministry in local prisons and jails, frequently
visiting the inmates, all of whom considered her as their own grandmother. One
day, one of the "jail-house-attorney"Ě inmates (a prisoner who has become obsessed
with the study of the law) told Esther in amazement: "Mama Esther? Did you realize
that there are over one-hundred thousand laws that will put you in jail?"Ě To
which she promptly replied, "Do you realize that there are Ten that will keep
The federal judges, however, refused to consider the general purpose of the
Commandments. Instead, they focused on theological minutia about which version
of the Ten Commandments was on display (which they apparently felt completely
competent to address), in much the same way that theologians of former generations
vigorously debated such useless and inane topics as how many angels would fit
on the head of a pin.
Perhaps only a liberal activist judge, an ACLU attorney, or a member of Americans
United for the Separation of Church and State (i.e., groups and individuals
who have demonstrated their distaste for religion in general) would make this
"theological"Ě distinctionď- as they did in this case. I am quite sure that Judge
Moore- just like 99.9 percent of Americans-ď was not aware (nor would he have
cared) that there were allegedly different theological versions of the Commandments;
as a judge, he was concerned with general behavior, not theology. Furthermore,
I firmly believe that no matter which version of the Ten Commandments Judge
Moore would have displayed-ď whether Jewish, Catholic, Protestant, or one of
each-ď the same arguments still would have been used against him.
The three theologians (Oops! My bad!!! I meant the three judges) in the 11th
Circuit who delivered the decision even personally impugned Moore, comparing
him to "those Southern governors who attempted to defy federal court orders
during an earlier era.-Ě Amazing! Apparently in the minds of those judges, Judge
Moore's displaying the Ten Commandments must be a sin akin to racism! The three
also forcefully pronounced to Moore a warning that when the time came, he would
obey their order to remove the Commandments.
Following the 11th Circuit's decision, federal district judge Myron Thompson
(who originally ruled against Moore before the case rose to the 11th Circuit)
promptly issued his own order that the monument be removed-ď now!-ď even before
Judge Moore's appeal to the Supreme Court had been filed. Judge Moore refused
to comply with that order, and hundreds rallied outside the court building in
an effort to prevent the removal of the monument from the Rotunda. Dozens who
exercised their First Amendment right "peaceably to assemble and to petition
the government for a redress of grievances"Ě were handcuffed and arrested, including
an elderly woman in a wheel chair-ď one among hundreds willing to resort to
peaceful civil disobedience in order to preserve respected symbols of our nation's
heritage, as well as the constitutional right to free exercise of religion.
Amazing! Americans are being arrested for trying to preserve the nation's moral
law rather than break it!
This same type of peaceful civil disobedience eventually turned the tide in
the civil rights' protests of the early 1960s. When Americans saw blacks arrested
and beaten by police simply for sitting in the "wrong"Ě seat on a bus, or going
to the "wrong"Ě table in a cafe, public sentiment propelled legislators to provide
a political solution. Such might have been the effects of the Ten Commandments
arrests-ď if they had continued for an extended period. Nevertheless, perhaps
the current publicity will cause Christians to stand up not only for this display
but also for those in their own local communities and thus prevent further intrusions
against the First Amendment's guarantee for their free exercise of religion.
Following Judge Moores refusal to comply with Judge Thompson's order, voices
of condemnation from across the nation were raised against Judge Moore, alleging
that he refused to follow "the rule of law."Ě Such claims constitute some of
the more civically-illiterate statements made in recent years. Consider: in
every student civics or government book in America is a page on "How a Bill
Becomes a Law."Ě Anyone who examines those pages will notice that the judiciary
has no role in making law; laws are a result of bills passed by an elected
legislative body and signed by an elected president or governor. Since no such
law has been passed in this case, what "rule of law"Ě was Judge Moore not upholding?
Can it actually be that the critics talking about "the rule of law"Ě believe
that an order by a single unelected federal judge is actually the equivalent
of a law? Apparently so. Don't misunderstand: this is not to suggest
that judicial rulings should be ignored based on the personal predilections
of the individual in the case; however, this ruling goes against every deeply
embedded legal standard in America's common law; and Judge Moore's refusal is
not based solely on his selfish or personal inclinations. (To learn how deeply
the Ten Commandments have been imbedded in American law and traditions, read
our court brief on this subject. Go to www.wallbuilders.com
and click on the front-page link for the Ten
Following Judge Myron Thompson's edict, the other eight justices on the Alabama
Supreme Court announced their unanimous opposition to Judge Moore's position
and agreed to cooperate in the removal of the monument. Judge Moore was subsequently
removed from his judgeship by the Alabama Court of the Judiciary for his refusal
to comply with the federal judge's order.
Importantly, Judge Moore was elected (as were the other eight Alabama Supreme
Court judges) and therefore is ultimately accountable directly to the people
of Alabama-ď who will eventually have the final say on this issue. And when
that time comes, the decision of the voters likely will not agree with the State's
other Supreme Court judges or the State's Judicial Inquiry Commission. Moore
was well-known for his stand for the Ten Commandments when he was elected to
the Supreme Court (he had already won three challenges to the Ten Commandments
at the time of his election), and recent polls show that 77 percent of the State
supports the display.
The US Congress was well aware of the situation in Alabama, and the House took
direct action. Rep. John Hostettler introduced, and the House overwhelmingly
passed (260-161), an amendment prohibiting federal funds from being used to
enforce Judge Thompson's order against the display. Similarly, Rep. Robert Aderholt
introduced (and the House twice passed) the Ten Commandments' Defense Act, allowing
State and local communities rather than federal judges to have the final say
in displays of the Ten Commandments; however, the Senate Democrats have killed
the bills each time. Rep. Aderholt recently reintroduced his bill; and Sen.
Wayne Allard (R-CO) introduced a bill (S 1558) based on Art. III, Sec. 2 of
the US Constitution that would remove the federal judiciary's right to rule
on Ten Commandments cases, but those bills are not likely to move unless Democratic
Senators feel substantial pressure to allow it.
Ultimately, the Alabama Ten Commandments monument was removed from the Rotunda
and relocated in a remote nonpublic room in the building. This was simply a
reconfirmation of the overall judicial message of recent years: if you must
have a religious expression, then that expression-ď like pornography-ď must
be viewed in private, not in public where others can observe it.
Sodomy and Homosexuality
In the recent case Lawrence, et. al. v. Texas, the US Supreme Court
reversed itself on the issue of State anti-sodomy laws. It struck down its own
decision of 17 years ago in Bowers v. Hardwick (1986), a case it which
it had upheld such State laws by declaring that sodomy was not protected
behavior and was not a constitutional right. In that case, the Court had explained:
Proscriptions against [homosexual] conduct have ancient roots. Sodomy was
a criminal offense at common law and was forbidden by the laws of the original
13 States when they ratified the Bill of Rights. . . . In fact, until 1961,
all 50 States outlawed sodomy, and today, 24 States and the District of Columbia
continue to provide criminal penalties for sodomy performed in private and
between consenting adults. Against this background, to claim that a right
to engage in such conduct is "deeply rooted in this Nation's history and tradition,"Ě
or "implicit in the concept of ordered liberty"Ě is, at best, facetious [silly].
Unfortunately, the Court now has decided that neither its own precedent nor
the nation's history on this subject matters any longer. That conclusion angered
Justices Scalia, Rehnquist, and Thomas, who offered an unusually stinging and
blunt dissent, penned by Justice Scalia. (Their comments will be excerpted throughout
this article, but to see the dissent in its entirety, go to http://laws.findlaw.com/us/000/02-102.html.)
Those three understood that the Court's decision declaring consensual sodomy
to be constitutional would produce dramatic cultural upheaval. As they warned:
State laws against bigamy, same-sex marriage, adult incest, prostitution,
masturbation, adultery, fornication, bestiality, and obscenity are likewise.
. . . called into question by today's decision. . . . What a massive disruption
of the current social order. . . . [and t]his reasoning leaves on pretty shaky
grounds state laws limiting marriage to opposite-sex couples. . . . Today's
opinion dismantles the structure of constitutional law that has permitted
a distinction to be made between heterosexual and homosexual unions, insofar
as formal recognition in marriage is concerned.
Activist attorneys around the nation were quick to recognize the opportunity
for social revolution that the Court had presented them. Within days of the
ruling, a suit was filed in Arizona to overturn that State's Defense of Marriage
Act (DOMA)-ď on of three dozen states with doma's-ď that limits marriage to
a man and a woman; a federal judge has already ruled again the DOMA in Nebraska;
and the Massachusetts Supreme Court-ď citing the Lawrence case-ď has
ruled that homosexual "marriages"Ě must be allowed in that State. That court
The question before us is whether . . . the Commonwealth may deny the protections,
benefits, and obligations conferred by civil marriage to two individuals of
the same sex who wish to marry. We conclude that it may not. We are mindful
that our decision marks a change in the history of our marriage law.
And why this change in the status of marriage law? The court explained:
The government creates civil marriage. In Massachusetts, civil marriage is- ďand since pre-Colonial days has been-ď precisely what its name implies:
a wholly secular institution. In a real sense, there are three partners to
every civil marriage: two willing spouses and an approving State.
Amazingly, by decree of 4 unelected individuals, marriage-ď after four centuries
of American practice-ď is no longer a sacred institution but instead is nothing
more than a civil arrangement!
(Interestingly, the same-sex marriage issue may cause great problems for the
Democrats, especially their presidential candidates. A recent AP poll
shows that by a margin of over 4 to 1, voters say they are less likely to support
a presidential candidate who backs civil unions or gay marriage; yet among the
major Democratic candidates, Howard Dean, Dick Gephardt, Bob Graham, and John
Kerry all support civil unions, while John Edwards and Joe Lieberman have also
expressed their open support (although not as strongly as the other four). While
7 of 10 Republicans support laws against gay marriage, only 4 of 10 Democrats
do; yet even the loss of that 40 percent of Democrats would be devastating to
any one of the Democratic presidential candidates. So far, however, those candidates
have been ominously silent in voicing any support for traditional marriage.)
The ramifications of the Supreme Court decision are being felt well beyond State
and federal DOMA laws. For example, based on the Supreme Court's new position
that consensual sexual acts are constitutional, a federal judge in North Carolina
has thrown out charges against a man arrested for soliciting sodomy in a public
park. And certainly, if solicitation of homosexual sex in public is now permissible,
so too will be the public solicitation of heterosexual sex, for prostitution- ď whether homosexual or heterosexual-ď is consensual and therefore must be constitutional
under the Court's new standard.
In Utah, a polygamous man with five wives is seeking a reversal of his conviction
in light of the recent Lawrence decision, for since the polygamy was
consensual and agreed to by all five wives, under the new standard, that behavior
must now be constitutional.
In Ohio, an attorney defending his client from prosecution under anti-pornography
and anti-obscenity laws is asserting that such laws are no longer constitutional
under Lawrence. After all, those who purchase pornographic videos to
view sexually explicit acts are doing so consensually; and even though the jury
trying the defendant often averted their eyes from the obscene, shocking, unnatural
acts in the video, those acts nevertheless were consensual. Will this attorney
succeed in his argument? Possibly, for it was this same attorney who last year
persuaded the Supreme Court to strike down the Child Pornography Protection
Act passed by Congress that had prohibited the display of explicit sexual images
of children on the web.
Clearly, the ramifications of the Court's decision go well beyond what most
citizens have imagined. In fact, since homosexuality is now "protected"Ě by the
US Constitution, then State laws prohibiting adoption of children by homosexuals,
forbidding the promotion of homosexuality in schools, or requiring the teaching
of pre-marital sexual abstinence will also become unconstitutional. (Why would
those abstinence laws become unconstitutional? Because homosexuals argue that
teaching students to wait until marriage to have sex unfairly discriminates
against homosexuals since they do not "marry."Ě) Indeed, the Lawrence
decision may be the most far-reaching, cultureshaking decision ever made by
the Supreme Court.
However, beyond the cultural impact of this case, there were at least five fundamental
constitutional violations and fallacies apparent in the ruling:
1. The Decision usurps the Constitutional Power of the
The Constitution has established that the only publicpolicy- making bodies in
the nation are to be the elected branches directly accountable to the people
(i.e., Congress and the President at the federal level, and legislatures and
governors at the State level). As Alexander Hamilton explained in Federalist
#78, the judiciary was not to be involved in policy-making:
The judiciary . . . has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have
neither force nor will. (emphasis added)
Obviously, the current judiciary disdains this original plan and today exerts
both force and will; it has become the dominant policy-making branch in the
federal government. Rather then confining itself to examining laws on constitutional
and legal grounds (as it did 17 years ago on this issue), the current Court
instead based its decision on what it personally desires the culture to become,
thus (again) engaging in social engineering. As Justice Scalia accurately noted:
Today's opinion is the product of a Court [that] is the product of a law-profession
culture that has largely signed on to the socalled homosexual agenda, by which
I mean the agenda promoted by some homosexual activists directed at eliminating
the moral opprobrium [disapproval] that has traditionally attached to homosexual
conduct. . . . [T]he Court has taken sides in the culture war, departing from
its role of assuring-ď as neutral observer-ď that the democratic rules of
engagement are observed. Many Americans do not want persons who openly engage
in homosexual conduct as partners in their business, as scoutmasters for their
children, as teachers in their children's schools, or as boarders in their
home. They view this as protecting themselves and their families from a lifestyle
that they believe to be immoral and destructive. . . . So imbued is the Court
with the law profession's anti-anti-homosexual culture that it is seemingly
unaware that the attitudes of that [law school] culture are not obviously
"mainstream"Ě; that in most States what the Court calls "discrimination"Ě against
those who engage in homosexual acts is perfectly legal; that proposals to
ban such "discrimination"Ě have repeatedly been rejected by Congress . . .
; that in some cases such "discrimination"Ě is mandated by federal statute
(mandating discharge from the armed forces of any service member who engages
in or intends to engage in homosexual acts); and that in some cases such "discrimination"Ě
is a constitutional right.
2. The Decision Violates the Standards of America's National
The standard of measurement for public policy and governmental action erected
in our national charter is "the laws of nature, and of nature's God."Ě Sodomy
is an act against both "the laws of nature"Ě and "the laws of nature's
God."Ě As William Blackstone (1723-1780)-ď the primary source of this phrase
in the Declaration-ď had explained:
As man depends absolutely upon his Maker for everything, it is necessary
that he should in all points conform to his Maker's will. This will of his
Maker is called the law of nature. . . . This law of nature, being coeval
[coexistent] with mankind and dictated by God Himself is, of course, superior
in obligation to any other. It is binding over all the globe, in all countries,
and at all times; no human laws are of any validity if contrary to this. .
. . The doctrines thus delivered we call the revealed or divine law and they
are to be found only in the Holy Scriptures [i.e., the "laws of nature's God"Ě].
. . . Upon these two foundations, the law of nature and the law of revelation,
depend all human laws; that is to say, no human laws should be suffered [permitted]
to contradict these.
(By the way, Blackstone has been cited by the federal courts in an authoritative
manner in over a thousand cases-ď more than 300 of these by the Supreme Court.
Obviously, the current Court now disdains the same authority on which it once
so heavily relied.)
Justice James Wilson-ď an original Justice on the US Supreme Court and a signer
of both the Declaration and the Constitution-ď was the father of organized legal
training in America. In the law book he authored for law students, sodomy was
so disgusting-ď was such an obvious violation of "the laws of nature and of
nature's God"Ě- ď that when it came time to discuss that particular crime in the
course of legal studies, Wilson simply declared:
The crime not to be named [sodomy], I pass in a total silence.
Sodomy was a behavior so reprehensible to "the laws of nature and of nature's
God"Ě that Wilson (along with many other Founders) was ashamed even to speak
of it. (To see more about other Founders' views on sodomy, see our book, Original
Intent, p. 306.)
Many today, however, assert that because the standard of the "laws of nature
of of nature's God"Ě was set forth in the Declaration rather than the Constitution,
that it is no longer applicable. Yet previous Courts affirmed that the Constitution
could not be properly interpreted apart from the values set forth in the Declaration
of Independence. According to a former Supreme Court:
The latter [Constitution] is but the body and the letter of which the former
[Declaration of Independence] is the thought and the spirit, and it is always
safe to read the letter of the Constitution in the spirit of the Declaration
Furthermore, the US Federal Code also established that both the Declaration
of Independence and the Constitution are organic laws of the United States.
Notwithstanding these incontrovertible facts, the current Supreme Court now
feels comfortable violating explicit provisions of our national charter.
3. The Decision Addresses Issues Beyond the Jurisdiction
Appropriate for the Court
Thomas Jefferson once reminded a Supreme Court Justice:
Can any good be effected by taking from the States the moral rule of their
citizens and subordinating it to the [federal] authority? . . . Such an intention
was impossible. . . . [T]aking from the States the moral rule of their citizens,
and subordinating it to the [federal] authority. . . . would . . . break up
the foundations of the Union.
Moral decisions were to be made by the people well below the federal level.
In fact, it had been to preserve this right of the people to protect their morality
and that of their communities that the Ninth and Tenth Amendments had been added
to the Constitution. If an issue or a subject had not been specifically enumerated
in the Constitution (including its amendments), it was to be out of the reach
of the Court. However, in the Lawrence decision, the Court (again) extended
itself beyond its constitutionally enumerated powers and intruded into areas
reserved for the people and the States.
That the Court would (again) overreach its jurisdiction would not have surprised
Jefferson, who long ago warned:
It has long, however, been my opinion- ď and I have never shrunk from its
expression . . .-ď that the germ of dissolution of our federal government
is in the constitution [structure] of the federal Judiciary; . . . working
like gravity by night and by day, gaining a little today and a little tomorrow,
and advancing its noiseless step like a thief, over the field of jurisdiction,
until all shall be usurped [brought under its control].
4. The Decision Violates the "Fundamental Principle of
Most official government documents include a title (e.g., "The Declaration of
Independence-Ě "The Articles of Confederation,"Ě "The Northwest Ordinance,"Ě etc.).
The only title that appears at the beginning of the Constitution is "We the
People"Ě- ď a title that sets forth its fundamental premise-ď a premise that was
first established in the Declaration of Independence: "the consent of the governed."Ě
The fact that the people, collectively, were the source of all authority was
such a self-evident truth that constitutional expert George Washington emphatically
[T]he fundamental principle of our Constitution . . . enjoins [requires]
that the will of the majority shall prevail.
Thomas Jefferson, the leader of a political party often at variance with Washington's
views, agreed with this position, similarly declaring:
[T]he will of the majority [is] the natural law of every society [and] is
the only sure guardian of the rights of man. Perhaps even this may sometimes
err. But its errors are honest, solitary and short-lived.
Does this therefore mean that minorities are to be ignored, disregarded, or
trodden upon? Of course not. As Jefferson further explained:
[T]hough the will of the majority is in all cases to prevail, that will,
to be rightful, must be reasonable; [and] the minority possess their equal
rights which equal law must protect.
While the minority is not to prevail over the majority, the minority, with
its constitutional guarantee of "free speech,"Ě does have the equal right to
attempt to persuade the majority to its point of view (or portions of its views).
However, "equal right"Ě is not the same as "equal power"Ě; the minority is never
the equivalent of the majority and is never to exercise control over
The majority's power is not without its own limitations, however; it is absolutely
restricted in that it may not enact a policy that violates a clear, explicit,
enumerated provision of the Constitution (e.g., a majority- ď no matter how large-ď could not vote to abridge free speech, or to ban trial by jury, or to reinstitute
slavery, or to raise the voting age back to 21, etc., without first amending
the Constitution itself ); but in all other instances not specifically enumerated
in the Constitution, the voice of the majority is the final word.
Six of the current Justices on the Court boldly reject what the Founders' described
as "the fundamental principle of the Constitution"Ě and "the natural law of every
society."Ě Instead, they apparently consider the majority to be an inherently
evil, wicked, depraved group that must be restrained at all times or else it
will seek to destroy all those who hold a differing viewpoint. Under the belief
that the majority is always wrong and that it can't stop itself from violating
the rights of others, the Court has therefore adopted an anti-majoritarian viewpoint.
As the dissent noted:
The Court [today] embraces Justice Stevens' declaration in his Bowers
dissent, that "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.-Ě This effectively decrees the end of all morals
While the majority may sometimes err, as Jefferson observed, when it does,
"its errors are honest, solitary, and short-lived."Ě
The Courts, too, will also sometimes err; after all, they are made up of individuals
just as fallible as those in any majority. As Thomas Jefferson correctly observed:
Our judges are as honest as other men and not more so. They have, with others,
the same passions for party, for power, and the privilege of their corps.
. . . [But] their power the more dangerous as they are in office for life
and not responsible-ď as the other functionaries are-ď to the elective control.
The Constitution has erected no such single tribunal.
However, the difference between courts and majorities is that errors by the
majority are usually shortlived while errors by the Court are usually more severe
and long-lasting. (For example, in 1875, Congress passed federal anti-segregation
laws; the Court, however, negated those laws and declared pro-segregation laws
to be constitutional in 1896; it was not until 60 years later that it finally
reversed itself and upheld the position Congress had taken in 1875; Congress
had ended segregation decades before the courts did.)
Greater confidence should be placed in a larger body of elected individuals
to self-correct and reverse more quickly than a smaller body of unelected individuals- ď that is, the 535 in Congress can more promptly correct a bad federal law they
previously passed than the 9 in the Supreme Court can correct a bad decision
they previously made. This point was also made clear by Justice Scalia in his
Let me be clear that I have nothing against homosexuals- ď or any other group-ď promoting their agenda through normal democratic means. . . . [but] imposing
one's views in absence of democratic majority will is something else. I would
no more require a State to criminalize homosexual acts-ď or, for that matter,
display any moral disapprobation of them-ď than I would forbid it to do so.
What Texas has chosen to do is well within the range of traditional democratic
action, and its hand should not be stayed through the invention of a brand-new
"constitutional right"Ě by a Court that is impatient of democratic change.
. . . [I]t is the premise of our system that those judgments are to be made
by the people, and not imposed by a governing caste that knows best.
The Justices may not like the decision made by the majority of the people;
it may not have been the decision the Justices would have made if they had been
the legislators writing the law. Nevertheless, the Justices are not legislators- ď no matter how much they may wish otherwise. If the Justices desire to enact
public policies, let them come down from their ivory tower, offer to the people
their vision for the culture, and see if the people agree and elect them to
office; then they would be constitutionally authorized to enact public policy.
However, if they are unwilling to do this, they should stay out of policy-making- ď especially when the policies they support place them in the minority of the
nation (as it did on this issue). Instead of trying to usurp the rights of the
people when they found themselves out of step with the majority, the Justices
should have followed the example of Samuel Adams who ďwhen he found himself
on the losing side of an issueď stated:
As it becomes a citizen, I will acquiesce in the choice of a majority of
Six Justices have chosen not to be good "citizens"Ě willing to "acquiesce in
the choice of a majority of the people"Ě; rather, they prefer to place their
own will above the will of the people.
5. The Decision Placed the Constitutions of Other Nations
above the US Constitution
The Supreme Court, to explain why it had decided to overturn its previous ruling
in the Bowers case, cited cases from foreign courts as well as foreign
trends rather than American authorities or documents. It whined:
To the extent Bowers relied on values we share with a wider civilization,
it should be noted that the reasoning and holding in Bowers have been
rejected elsewhere. The European Court of Human Rights has followed not Bowers
but its own decision in Dudgeon v. United Kingdom (Eur. Ct. hr, Sept.
25, 2001); Modinos v. Cyprus, 259 Eur. Ct. hr (1993); Norris v.
Ireland, 142 Eur. Ct. hr (1988). Other nations, too, have taken action
consistent with an affirmation of the protected right of homosexual adults
to engage in intimate, consensual conduct. See Brief for Mary Robinson
et al. The right the petitioners seek in this case has been accepted as
an integral part of human freedom in many other countries.
Amazing! Since other nations won't follow our Supreme Court's decision in Bowers,
let's instead abandon our position and follow theirs!
Notice the Court's multiple references in the above quotation to holdings by
the pro-homosexual European Court of Human Rights. Additionally, notice that
the Court specifically cited the brief by Mary Robinson, the UN High Commissioner
for Human Rights. In that brief, Robinson had argued that since other nations
believed that the "criminalization of same-sex sodomy between consenting adults
violates constitutional guarantees of privacy and equal protection,"Ě that our
American Supreme Court "should pay due respect to these opinions of humankind."Ě
She further asserted that "legal concepts like ėprivacy," ėliberty," and ėequality"
are not US property but have global meaning-Ě and therefore- ď even though these
words are prevalent throughout American law-ď they should be defined "in light
of foreign interpretations"Ě rather than American ones. Robinson even cited cases
from other nations that were favorable to same-sex marriages, and she ominously
warned that if the Supreme Court ignored the rulings of these other nations,
it would "generate controversies with the United State's closest global allies."Ě
This was the first time that the Court had cited foreign legal precedents as
the primary authority for its decision. USA Today correctly noted, "The
Supreme Court's reference to foreign law . . . stood out as if it were in bold
print and capital letters."Ě The Court's reliance on foreign decisions instead
of the US Constitution evoked this comment from the dissenting Justices:
Constitutional entitlements do not. . . . spring into existence, as the Court
seems to believe, because foreign nations decriminalize conduct. The Bowers
majority opinion never relied on "values we share with a wider civilization"Ě
but rather rejected the claimed right to sodomy on the ground that such a
right was not "deeply rooted in this Nation's history and tradition."Ě
. . . The Court's discussion of these foreign views (ignoring, of course,
the many countries that have retained criminal prohibitions on sodomy)
is therefore meaningless dicta. Dangerous dicta, however, since "this Court
... should not impose foreign moods, fads, or fashions on Americans."Ě Foster
v. Florida, 537 US 990, n. (2002) (Thomas, J., concurring in denial of
These three Justices correctly assert that when the American Supreme Court
addresses an issue, it should be the American Constitution that is determinant,
not foreign rights or wrongs. Nevertheless, last year, Clinton appointees to
the Supreme Court Breyer and Ginsburg cited international treaty provisions
as the basis for their decisions regarding American policies. And when Justice
Stevens similarly invoked a foreign authority as a precedent, Scalia forcefully
responded that: "The views of other nationsď- however enlightened the Justices
of this Court may think them to be- ď cannot be imposed upon Americans through
the Constitution."Ě (Chief Justice William Rehnquist and Justice Clarence Thomas
also joined Scalia in that declaration, as they did in this case.)
Did our Founders have an opinion on invoking foreign standards as an authority
for America? Yes- ď a very strong opinion! For example:
I wish America would put her trust only in God and herself and have as little
to do with the politics of Europe as possible. George Mason, Father of
the Bill of Rights
Particular attachment to any foreign nation is an exotic sentiment which- ď where it exists-ď must derogate from [weaken] the affection due to our own
country. Alexander Hamilton, Signer of the Constitution
Europe has a set of primary interests which to us have no- ď or a very remote-ď relation. . . . Why forego the advantages of [our] situation? Why quit [leave]
our own to stand upon foreign ground? George Washington, President
The comparisons of our governments with those of Europe are like a comparison
of heaven and hell. Thomas Jefferson, President
This wise advice obviously was not heeded by the six Justices in the Lawrence
case. In fact, the week following their decision, several of the Justices went
to Florence, Italy, to meet with foreign judges on a proposed new European constitution.
This might have been acceptable if the Justices were attempting to move the
rest of the world toward the proven American system of representative republicanism,
but results confirm just the opposite- ď that other nations are moving our American
Justices in their direction and toward an abandonment of our uniquely successful
Shortly after the Court's prosodomy decision (and before the Justices left to
"work"Ě in Europe), Justices Breyer and O'Connor went on television (ABC) to
defend their reliance on views of international precedent. Justice Breyer openly
questioned whether the Constitution was still relevant in this new "modern"Ě
age. As he explained, when it came to the Founders and the Constitution, "they
didn't have automobiles in mind, or they didn't have airplanes in mind, or telephones,
or the Internet; or you look at a word like ėliberty," and they didn't have
in mind at that time the problems of privacy.-Ě That is, since those words don't
expressly appear in the Constitution, we will reject the timeless constitutional
principles that do apply to these modern issues and instead enact a new
"modern"Ě judicially-written Constitution. Breyer also confirmed that he viewed
the Constitution not as a stand-alone document but rather as one that should
be integrated into and interpreted by foreign standards. As he explained: "Whether
our Constitution- ď and how it fits into the governing documents of other
nations-ď I think will be a challenge for the next generations.Ě And Justice
O'Connor similarly affirmed to the Southern Center for International Studies
(an affiliate of the World Affairs Councils of America) that, "Over time, we
will rely increasingly, or take notice at least increasingly, on international
and foreign courts in examining domestic issues."Ě
If America is to adopt the positions of other nations, then our own Constitution
will eventually be abrogated in most areas; after all, the right to keep and
bear arms (Amendment II), the death penalty (Amendment V), free exercise of
religion (Amendment I), and a number of other traditionally American rights,
liberties, and principles are not observed in many other nations.
For these six Justices to invoke international laws and foreign trends as the
basis for American domestic policy is a clear violation (again) of the oaths
of those six Justices to uphold the US Constitution. Rather than uphold it,
they now subjugate it and make it subservient to foreign views and opinions.
( Just as it has been refreshing to witness the consistent commitment of Justices
Scalia, Rehnquist, and Thomas to American constitutional principles and legal
standards, it has also been extremely refreshing to observe the number of occasions
in which President Bush has stood up to the United Nations and consistently
refused to submit to their demands, threats, edicts, or standards ď in areas
ranging from his refusal to allow un treaties to determine US policies to his
refusal to allow the UN to run the war with Iraq, or the subsequent rebuilding.)
A Federal Judiciary in Crisis
The issues covered in this report (abortion, the Ten Commandments, sodomy,
and American sovereignty) all demonstrate that systemic reform of the judiciary
is needed. Such reform must occur through both external and internal means ď
externally through congressional oversight and statutorily imposed restraints,
and internally through the appointment of judges who believe they should consult
the Constitution before rendering a decision.
Concerning this latter point, the current Supreme Court is split between what
President George W. Bush has called "strict constructionists"Ě (Justices Rehnquist,
Thomas and Scalia, who believe that the Constitution uses words that have meaning)
and Justices who accept a "living Constitution"Ě (Justices O'Connor, Breyer,
Kennedy, Ginsburg, Souter, and Stevens, who believe that the Constitution can
be rewritten from decision to decision, depending on the current national or
It is the President and the Senate that determine from which of these two opposite
judicial philosophies individuals will be nominated and confirmed as federal
judges. Herein rests part of the current dilemma: President Bush is nominating
"strict constructionists"Ě (whom Scalia calls "originalists"Ě) to the federal
courts, but Senate Democrats insist on "living Constitution"Ě judges.
Next year's federal elections should be viewed through no other light than what
a presidential or a senatorial candidate will do with judges. Do citizens want
judges who believe in the Constitution and its unique American values, or do
they want judges who rely on in international precedents? They need to vote
for President and Senators accordingly.
How important is a single judge? Consider the Supreme Court: there have been
more 5-4 decisions in recent years than at any previous time in the history
of the Court. Recall that the State partial-birth abortion ban was struck down
by a 5-4 margin ď that is, one Justice on the Supreme Court was responsible
for striking down three-dozen State laws barring that ghastly procedure. Even
in the recent Lawrence v. Texas case, it was only two unelected Justices
who determined that the nation could not have laws declaring homosexuality or
sodomy to be wrong. (Since the decision was 6-3, had any two of the majority
Justices been on the other side of the issue, the outcome would have been reversed;
therefore, two unelected Justices have now decreed to 270 million Americans
what their sexual moral standards must be.) Even though there are almost 1200
federal judges, a single judgeď whether on the Supreme Court, a Court of Appeals,
or district court ď is important.
Never before in American history have there been such clear distinctions between
two opposite judicial philosophies; never before in American history has the
direction of so much of the culture been at stake; and never before in American
history has the Senate actually filibustered a judge. However, things have changed.
Senate Democrats now have eleven judges they consider worthy of filibustering
(filibustering just one was a Senate record, but eleven!?!). An update on some
of the filibustered federal judicial nominees is therefore appropriate.
Some of the Federal Judicial Nominees Targeted for Filibuster
Nominee for the Federal 9th Circuit Court of Appeals
Kuhl, who has been a judge in California for seven years, is on being filibustered
by the Democrats. Her qualifications are not an issue, for even Democrat US
Senator Diane Feinstein concedes, "I have never had more letters from sitting
judges in support of a candidate than I have with respect to this judge. Clearly,
this is a very bright woman."Ě Additionally, the American Bar Association has
given Kuhl its highest rating as a potential federal judge.
Why, then, is she being blocked? According to Democrat US Senator Barbara Boxer,
"Judge Kuhl is way out of the mainstream on choice and privacy, with writings
that call for the outright repeal of Roe."Ě (In 1986 while serving as
a deputy attorney general in California, Kuhl filed a brief encouraging the
US Supreme Court to overturn Roe v. Wade; she also filed a brief in support
of the federal law barring planning clinics that receive federal funds from
discussing abortion with their clients.) Despite Kuhl's pledge that she will
uphold the laws of the land (as she has done for the seven years she has been
on the bench), that pledge is insufficient for Senate Democrats, who apparently
believe that no one is capable of upholding the law unless they are pro-abortion
activists. They therefore are actively working to keep Kuhl off the 9th Circuit
Court of Appeals (the same Court that delivered the wacky Pledge of Allegiance
Nominee for the Federal 4th Circuit Court of Appeals
Allen is a young black Christian conservative who homeschools his children.
He currently serves under President Bush as the Deputy Secretary for the Department
of Health and Human Services where he promotes premarital sexual abstinence
and has worked aggressively to expand the availability of these programs for
So what is the problem with Allen? According to Democratic supporters such as
the so-called Alliance for Justice, Allen has a "radical record of opposition
to a woman's right to choose, equal rights for gays and lesbians, and his unfounded
and dangerous belief that denying students access to proper sex education will
keep them safe."Ě Homosexual groups similarly complain that Allen is the eighth
Bush nominee who holds views "hostile to gay civil rights."Ě
Ironically, even though blacks make up 22 percent of the population in the federal
4th Circuit (a percentage higher than in nearly any other Circuit), only one
of the 17 current judges on the court is black ď and Senate Democrats are opposing
the addition of Allen as a second. The fact that Allen is conservative, Christian,
a homeschool father, and embraces traditional moral values apparently makes
him way too radical for Senate Democrats!
Janice Rogers Brown
Nominee to the Federal 9th Circuit Court of Appeals
Brown is currently a justice on the California Supreme Court (where she has
served since 1996) and is considered the most conservative of those justices.
Her personal story is inspiring: she is the daughter of a sharecropper and was
born in the deep South during segregation; as a teen she picked cotton and she
remembers the personal pain of the Jim Crow segregation laws; yet despite all
of this, she has no bitterness; and her view of law has not been affected by
her own personal experiences. In fact, she has even written an opinion against
affirmative action (some would consider that very unusual for someone with her
background); but she did so because the State has passed a ban (Prop 209) on
affirmative action, and she simply upheld the State law.
So why would Democrats oppose a black woman for the Court of Appeals, especially
when there are only four female African-Americans in the entire Court of Appeals
system? Perhaps part of the answer rests in a statement found in her official
biography, which describes her as "a devoted mother and spouse, and a jurist
who finds her paramount strength in prayer and the quiet study of the Bible."Ě
In fact, in a recent speech at a State law school, Brown declared: "Scientists
and philosophers have spent the last hundred years trying to organize society
as if God did not exist. . . . The[ir] project was a miserable failure."Ě Additionally,
she wrote an opinion supporting a State parental-consent abortion law for teens,
and she even supports the US Constitution's clause permitting the death penalty.
All of this apparently is sufficient for Senate Democrats to filibuster her
in an effort to prevent her from being placed on a federal Court of Appeals.
Nominee to the Federal 11th Circuit Court of Appeals
During his Senate confirmation hearings, Pryor was confronted by pro-abortion
Democrats about whether he stood by a previous comment in which he had declared
that the Roe v. Wade decision was "the worst abomination in the history
of constitutional law."Ě Instead of evading the direct question, he pointedly
said, "I do."Ě As he explained, "I believe that not only is the case unsupported
by the text and structure of the Constitution, but it has led to a morally wrong
result. It has led to the slaughter of millions of innocent unborn children.
That's my personal belief."Ě
Pryor also asserted that in Roe, the Supreme Court had created "out of
thin air a constitutional right to murder an unborn child"Ě and that he would
"never forget January 22, 1973 [the day the Court rendered the Roe decision]
ď the day seven members of our highest Court ripped up the Constitution."Ě There
is no difficulty in knowing why Senate Democrats oppose Pryor!
These are only four of the nearly dozen who have been tagged for filibuster
by Senate Democrats. Others include Charles Pickering, Priscilla Owen, Brett
Kavanaugh, and Miguel Estrada (before he finally withdrew). Perhaps Estrada
has received the most media coverage, for he was the first federal judge in
America's history to be filibustered. The Senate voted eight times attempting
to break the filibuster against him, but each time fell short of the necessary
60 votes to end the Democratic blockage. Although 55 Senators ď a clear majority
of Senatorsď supported Estrada, Senate Democrats have so perverted the Senate
rules that now it takes three-fifths of the Senate to confirm a judge rather
than the constitutionally-mandated simple majority.
When Estrada finally withdrew his name from consideration, President Bush lamented:
"Mr. Estrada received disgraceful treatment at the hands of 45 United States
Senators during the more than two years his nomination was pending. . . . The
treatment of this fine man is an unfortunate chapter in the Senate's history."Ě
Estrada would have been the first Hispanic to sit on what is considered the
nation's second highest court (the dc Court of Appeals). As Virginia Thomas
ď wife of Supreme Court Justice Clarence Thomasď accurately pointed out, "We
allowed the US Senate to erect a ėglass ceiling' in our courts; you can do all
the right things in America, but if you do not agree with Ted Kennedy and Hillary
Clinton, you need not apply as a federal judge. . . . Miguel Estrada was not
qualified to be a federal judge because he would not march to their drumbeat."Ě
The Estrada nomination succeeded in reaching two regrettable "firsts"Ě in America's
history; as US Senator Jeff Sessions (R-AL) explained: "He was the first nominee
to be filibustered; and now he will be the first one to be defeated by filibuster."Ě
Ending the Filibusters
In an effort to make the Senate rules conform to the Constitution, Sen. Bill
Frist (R-TN) and Sen. Zell Miller (D-GA) have introduced a measure that would
gradually reduce the number of Senators required to confirm a judge until finally
only a majority would be required. (That is, on the first attempt to end a filibuster,
sixty votes would be required; on the second attempt, fifty-seven votes; on
the third, fifty-four votes; on the fourth, a simple majority of Senators present.)
Although this measure would cause Senate rules to conform to the Constitution,
it is not likely to pass because a Senate rules change requires a two-thirds
vote ď more than the number now needed to end the filibusters!
In a further effort to end the filibusters, Senate Republicans scheduled a 39
hour nonstop debate spanning three days to focus national attention on the Democratic
filibuster of judges. While the debate did not change the Democratic opposition
in the Senate, according to subsequent polling, it did change public opinion
in favor of the blocked judges and against the Democratic obstructionists. Why?
Perhaps because the open hostility against prolife people of faith was openly
revealed to the public. For example, Sen. Hillary Clinton (NY) called those
pro-life Christians "lemons,"Ě and Sen. Edward Kennedy called them "Neanderthals."Ě
Preceding the debates, Sen. Richard Durbin (IL) had announced that "religion
is now the refuge of extremists"Ě and Sen. Charles Schumer (NY) declared his
belief that "deeply held personal beliefs"Ě disqualify an individual from service
in the judiciary. While Article VI of the US Constitution prohibits requiring
a specific religious belief to hold office, the Senate Democrats apparently
now require an antireligious belief to hold office- or at least a religious
belief that is so weak that it is not "deeply held"Ě and therefore has no effect
on one's beliefs or behavior.
With the Senate unable to end the roadblock, and with strong Democratic opposition
to the appointment of strict constructionists to the courts, it appears that
the voters are the only force that can change the direction of the culture in
America. Unless 60 votes are placed in the Senate that are willing to help reform
the judiciary (through both appointments and changes in the law), the cultural
decline will continue ď despite the fact (as noted at the beginning of this
report) that the values of citizens nationally are becoming more Biblical. If
voters don't voteď or don't vote according to their values ď then positive
change will not occur. As President James A. Garfield reminded citizens:
Now, more than ever before, the people are responsible for the character
of their Congress. If that body be ignorant, reckless, and corrupt, it is
because the people tolerate ignorance, recklessness, and corruption. If it
be intelligent, brave, and pure, it is because the people demand these high
qualities to represent them in the national legislature. . . . [I]f the next
centennial does not find US a great nation . . . it will be because those
who represent the enterprise, the culture, and the morality of the nation
do not aid in controlling the political forces.
Federal elections are less than a year off, and now is the time to begin planning- watching Senators and senatorial candidates- ďwatching the President and presidential
candidates-ď to see whether they will stand up for America's values. If they
won't, then it's time for voters to stand up and deliver their own clear message.
(To view an Adobe
version of this newsletter, including pictures, click here.)
Would you like to receive The
WallBuilder Report? We are pleased to send you the David Barton's publication
for six months. However, beyond that period, we need to hear from you in some
manner. Write us a letter, give us a call, make a purchase,
or even send us a contribution!
Whatever, or however, simply show us you're with us in rebuilding America and
we'll keep The WallBuilder Report coming your way. Click
here to sign up, or call us at (817) 441-6044, or write us at: WallBuilders,
P.O. Box 397, Aledo, TX 76008-0397.