PROTECTING MARRIAGE FROM JUDICIAL TYRANNY
By Dr. Ron Paul
The practice of judicial activism – legislating from the bench – is now standard procedure for many federal judges. Dismissing the doctrine of strict construction as outdated, these activist federal judges embrace an extreme version of the doctrine of broad construction and treat the U.S. Constitution as a fluid and malleable document enabling judges to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the law they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than on upholding the rule of law, as embodied in the Constitution and statutes of the United States, Americans find themselves increasingly governed by judges they did not elect and cannot vote to remove from office.
Consider the case of Lawrence v. Texas,  decided by the United States Supreme Court in June, 2003. The Supreme Court determined that the State of Texas has no right to establish its own standards for private sexual conduct, because these laws violated the Court’s interpretation of the Fourteenth Amendment to the U.S. Constitution. Regardless of the advisability or inadvisibility of such state laws, the Federal Constitution does not give the national government authority to overturn these laws. Under the Tenth Amendment to the U.S. Constitution,  the State of Texas has the constitutional authority to pass laws concerning social matters, using its own local standards, without interference on the part of the central government. But, rather than adhering to the U.S. Constitution and declining jurisdiction over a state matter, the Supreme Court decided to stretch the “right to privacy” to justify imposing the Supreme Court justices’ own vision of "political correctness" and wise public policy on the people of Texas.
Since the Supreme Court's decision in Lawrence v. Texas (2003), many Americans have expressed their concern that the Court may next “discover” that state laws defining marriage violate the Court’s unsound and wrongheaded interpretation of the U.S. Constitution. After all, some judges simply may view this result as taking the Lawrence decision to its logical conclusion.
One way federal courts may impose a redefinition of marriage on the states is by interpreting the Full Faith and Credit Clause (Article IV, Section 1) of the Constitution  to require all states, even those which do not grant legal standing to same-sex marriages, to treat as valid same-sex marriage licenses from the few states which give legal status to such unions. This would have the practical effect of nullifying state laws defining marriage as solely between a man and a woman, thus allowing a few states and a handful of federal judges to create marriage policy for the entire nation.
In 1996, Congress exercised its authority under the Full Faith and Credit Clause of Article IV of the U.S. Constitution by passing the Defense of Marriage Act. This ensured that each state could set its own policy regarding marriage and not be forced to adopt the marriage policies of another state. Since the Full Faith and Credit Clause grants Congress the clear authority to “prescribe the effects” that state documents such as marriage licenses have on other states, the Defense of Marriage Act is unquestionably constitutional. However, the lack of respect federal judges show for the plain language of the Constitution necessitates further congressional action, action to make certain that state officials are not forced, because of a flawed judicial interpretation, to recognize another states’ same-sex marriage licenses. The drafters of the Constitution gave Congress the power to limit federal court jurisdiction to provide a check on out-of-control federal judges. It is long past time for Congress begin using its legitimate authority to protect the states and the people from judicial tyranny.
Since the Marriage Protection Act requires only a majority vote in both houses of Congress (and the President’s signature) to become law, it is a more practical way to deal with this issue than would the time-consuming process of proposing and adopting a federal constitutional amendment. In fact, since the 1996 Defense of Marriage Act overwhelmingly passed both houses, and the President supports protecting state marriage laws from judicial tyranny, there is no reason why the Marriage Protection Act cannot become law this year.
Some may argue that allowing federal judges to rewrite the definition of marriage can result in a victory for individual liberty. This claim is flawed. The best guarantor of true liberty is decentralized political institutions, while the greatest threat to liberty is concentrated power. This is why the U.S. Constitution carefully limits the power of the national government over the states. Allowing federal judges unfettered discretion to strike down state laws, or force a state to conform to the laws of another state, leads to centralization of governmental power and the loss of liberty.
While marriage is licensed and otherwise regulated by the states, government did not create the institution of marriage. In fact, the institution of marriage most likely pre-dates the institution of government! Government regulation of marriage is based on state recognition of the practices and customs formulated by private individuals interacting in civil society. Many people associate their wedding day with completing the rituals and other requirements of their religious faith, thus being joined in the eyes of their church or synagogue – not the day they received their marriage license from an agency of the state within which they reside. Having U.S. government officeholders, whether judges, bureaucrats or congressmen, impose a new definition of marriage on the people is an act of social engineering profoundly hostile to individual liberty and to traditional American political, social, and moral values.
Congress has a constitutional responsibility to stop rogue federal judges from using a flawed interpretation of the U.S. Constitution to rewrite the laws and traditions governing marriage. I urge my colleagues to stand against destructive judicial activism and for traditional marriage, to do so by voting for the Marriage Protection Act.
We Americans certainly don’t need new federal programs unconstitutionally enlarging the power of the national government over matters reserved to the states by the Tenth Amendment to the Constitution. We don’t need more federal control over the public schools. We don’t need centralized governmental regulation of social issues.
What Americans do need is a national government that provides effective national defense, secures our borders against illegal immigration and terrorist infiltration, and does very little else. Needless to say, you won’t hear either of the two major political parties suggesting such a platform anytime soon.
U.S. Constitutional Law & Political Philosophy
Marriage, Family, & Society
The foregoing statement by Dr. Ron Paul was presented as a speech, delivered from the floor of United States House of Representatives on July 22, 2004.
Dr. Ron Paul is a Republican member of the U.S. House of Representatives, elected from and representing the Fourteenth
Congressional District of Texas. Congressman Paul is considered to be one of America's leading spokesmen for constitutional
government, the rule of law, liberty under law, the private enterprise system,, free market economics, sound monetary policy, and
fiscal restraint on the part of the U.S. national government.
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