THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume VII, Issue # 70, April 4, 2005
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
PROTECTING MARRIAGE FROM JUDICIAL TYRANNY
By Dr. Ron Paul
THE CONSTITUTIONAL AUTHORITY & RESPONSIBILITY OF CONGRESS TO ENACT LEGISLATION THAT WOULD PREVENT ACTIVIST
FEDERAL JUDGES FROM USING A FLAWED INTERPRETATION OF THE UNITED STATES CONSTITUTION TO REWRITE THE LAWS &
TRADITIONS GOVERNING MARRIAGE: THE NEED FOR CONGRESS TO PASS THE PROPOSED MARRIAGE PROTECTION ACT &
THEREBY STAND AGAINST DESTRUCTIVE JUDICIAL ACTIVISM & FOR TRADITIONAL MARRIAGE
FULL STORY:
As an original co-sponsor of the Marriage Protection Act (HR 3313), I strongly urge my colleagues in the United States House of
Representatives to support this bill. HR 3313 would ensure that federal courts will not undermine any state laws regulating marriage,
that federal courts will not undermine state marriage laws by forcing a state to recognize same-sex marriage licenses issued in another
state. The Marriage Protection Act thus would ensure that the authority to regulate marriage remains with individual states and local
communities, as the drafters of the United States Constitution intended.
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doctrine of strict construction as outdated, these activist federal judges embrace an extreme version of the doctrine of broad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, [1] 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, [2] 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 [3] 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.
NOTES:
[1] Lawrence v. Texas, 539 U.S. 558 (2003): In this case, the U.S. Supreme Court, by a
6-3 decision, invalidated (declared unconstitutional and null and void) the criminal
prohibition of homosexual sodomy in Texas. The Supreme Court ruled that intimate
sexual conduct is part of the liberty protected by Substantive Due Process under the
Fourteenth Amendment to the U.S. Constitution and, therefore, the Texas state law
making homosexual activity between consenting adults, acting in private, a criminal
offense is in violation of the Due Process Clause of the Fourteenth Amendment: "No
State shall make or enforce any law which shall ... deprive any person of life, liberty,
or property, without due process of law...." (U.S. Constitution, Fourteenth
Amendment, Section 1, Clause3)
[2] U.S. Constitution, Tenth Amendment: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people."
[3] U.S. Constitution, Article IV, Section 1: "Full Faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect thereof."
LINKS TO RELATED TOPICS:
Legal Issues, Lawyers, & America's Judiciary
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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Dr. Almon Leroy Way, Jr., Editor
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