J O E L H I L L I K E R C O L U M N I S T

‘Unconstitutional’?
August 11, 2010 | From theTrumpet.com
The danger in the ruling against Proposition 8
 

A ccording to Vaughn Walker, it was “unconstitutional” for Californians to vote to declare

homosexual marriage illegal.

The legal reasoning that led to that decision last week is a revealing case study in how the human
mind can justify lawlessness.

In Perry v. Schwarzenegger, Judge Walker accused Californians of violating the law—the Constitution,

no less. In truth, he is the one trampling on the law and expropriating power that doesn’t belong to
him.

Walker’s decision was built on a few ambiguous or problematic phrases that have accumulated in court
opinions over the past 45 years or so. Within America’s precedent-based legal system, that shaky
sequence of loaded language has been used to stretch and refashion the Fourteenth Amendment into
a potent weapon with which liberal judges can force their twisted will on society.

A short history lesson might help the reader.

The Fourteenth Amendment was passed in 1868 to safeguard the rights of the slaves freed after the
Civil War. Part of it reads, “No state shall make or enforce any law which shall … deprive any person of
life,liberty, or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws” (emphasis mine throughout).

These two clauses—the promise not to deprive anyone of “liberty … without due process of law” and
that of “equal protection” for all—are the two upon which Judge Walker based his legal argument.

The road from protecting the rights of freed slaves to banning voters from prohibiting homosexual
“marriage” began with a single step.

In his 2005 book Men in Black, Mark Levin traces its origins to the 1965 Griswold v. Connecticut case,
in which Justice William O. Douglas found a heretofore-nonexistent “right to privacy” in the “due
process” clause. To strike down a law that prohibited the sale of contraceptives, Douglas argued that it
deprived married couples “liberty.” He wrote—try to follow this—that “specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help give them life and
substance.” That is smoke-and-mirrors phraseology. Penumbras and emanations are scientific terms
without legal meaning—except as Douglas appropriated them to justify stretching the Fourteenth
Amendment.
By finding a “right to privacy” in a penumbra of an emanation, Justice Douglas put his personal
opinion above the law and struck a severe blow to the foundation of many other laws.

Obviously many acts can occur in the privacy of one’s bedroom that are still illegal—rape or cooking
up drugs, for example. As Justice Hugo Black wrote in his dissenting opinion in Griswold v.
Connecticut,“‘Privacy’ is a broad, abstract and ambiguous concept which can easily be shrunken in
meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against
many things other than searches and seizures. … I like my privacy as well as the next one, but I am
nevertheless compelled to admit that government has a right to invade it unless prohibited by some
specific constitutional provision.”

Seven years later, the issue of contraceptives and unmarried couples came up in Eisenstadt v.

Baird. Here the Supreme Court used the “equal protection” clause to say that if married people could
have access to birth control, then so should single people. The majority opinion also predictably
expanded the “right to privacy,” saying, “If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child.” (The superfluous
insertion of “whether to bear” a child, which had no connection to the case, proved significant the
following year, 1973. In Roe v. Wade, the court relied on this thin justification to rule that the “right to
privacy” included a woman’s right to abortion. Another example of legal language becoming a lethal
weapon.)

Thus the court again exalted the justices’ personal preferences—a mere five unelected individuals—
over the laws legitimately created by a state legislature elected by the people. Levin calls this a “quiet
revolution against representative government.”

The issue of homosexuality stormed the Supreme Court in 1986, in Bowers v. Hardwick. In that case,
a 5-4 majority upheld a Georgia state law against sodomy, pushing back against the forward march of
the “right to privacy.” The court argued that the notion that “any kind of private sexual conduct
between consenting adults is constitutionally insulated from state proscription is unsupportable.”
Sadly, that ruling—which upheld the Constitution by respecting the power of individual states in such
matters—wouldn’t stand for long.

In 1996 it was again court versus state in Romer v. Evans. This case addressed the constitutionality of
an amendment to Colorado’s constitution that excluded “sexual orientation” from civil rights laws
banning racial and religious discrimination. The Supreme Court killed the amendment based on the
“equal protection” clause. In his dissent, Justice Antonin Scalia exposed the central fallacy in this
decision: “If it is constitutionally permissible for a state to make homosexual conduct criminal [which,
of course, the court had acknowledged it could only 10 years before in Bowers v. Hardwick], surely it
is constitutionally permissible for a state to enact other laws merely disfavoring homosexual
conduct”—and certainly to pass a provision “merely prohibiting all levels of state government from
bestowing special protections upon homosexual conduct.”

So true: There was a glaring contradiction between the court’s ruling on Bowers and its ruling
on Romer. But rather than judge according to precedent and in respect of its clear constitutionally
prescribed limitations, the court doubled down and, in 2003, reversed its Bowers decision. In the
landmark Lawrence v. Texas case, a 6-3 Supreme Court found that—lo and behold—the
Constitution did in fact guarantee Americans the right to commit homosexual sodomy.
The majority held that the dissenting opinion in Bowers v. Hardwick—which said that just because
something is considered immoral doesn’t make it illegal—was actually correct. Justice Anthony
Kennedy, in writing the opinion, spoke of an “emerging awareness that liberty [that all-important word
in the “due process” clause] gives substantial protection” to sexual decisions. He also brought out that
the European Convention on Human Rights invalidated sodomy laws. Who needs the Constitution?

“This effectively decrees the end of all morals legislation,” lamented Justice Scalia in his dissent. “If,
as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state
interest,” he wrote, and all laws are subject to “rational-basis review” alone, then that undermines the
foundation for “criminal laws against fornication, bigamy, adultery, adult incest, bestiality and
obscenity.”

He continued, “The Supreme Court is clearly in the business of vetoing state (and federal) legislation
by inventing new and increasingly more absurd justifications. It does not feel bound by the
Constitution or even precedent. It is abandoning the constitutional framework that supports the moral
foundation of our laws. … State laws against bigamy, same-sex marriage, adult incest, prostitution,
masturbation, adultery, fornication, bestiality and obscenity are likewise sustainable only in light
of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into
question by today’s decision.”

Sure enough. Today, in Perry v. Schwarzenegger, we witness the inevitable next step in this trend.

Judge Walker roundly attacked the moral argument against same-sex marriage. “The evidence shows
conclusively that moral and religious views form the only basis for a belief that same-sex couples are
different from opposite-sex couples,” he argued, saying that such views cannot be the basis for law.
“[T]he evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral,
if not a positive, effect on the institution of marriage,” he wrote—and, thus, opposition to same-sex
marriage is simply not rational—hence constitutionally impermissible.

Walker held that Proposition 8 violated the Fourteenth Amendment’s “due process” clause. Marriage is
a fundamental right of Americans, he said, and homosexuals are Americans. Forget the fact that, for
example, states also prohibit siblings from marrying, or parents from marrying their own children, or
minors from marrying—all moral choices on the part of states. Forget that all three branches of the
federal government as well as the state of California have already lawfully determined that for a state
not to grant marriage to homosexuals is constitutional.

Walker also said Prop 8 violated the “equal protection” clause, which forbids sexual discrimination, by
stretching the definition of sex to include sexual orientation. This is legally unprecedented, and, left
unchallenged, opens the door for a great deal more litigation by homosexuals and other sexual
deviants.

Thus, a single district court judge cast aside current law, ignored precedent, and exalted his own
secularist morality ahead of the moral judgment of a majority of voters in the most populous state in
the union.

He stripped power from people to allow religion to form the basis of their moral judgment. He
increased the growing supremacy of secularism. He advanced the cause of godless rationalism, and
the ruinous campaign to make fallible human reasoning the only legitimate authority.
Wearing the cloak of constitutionality, he raised the banner of lawlessness. In ruling Proposition 8
unconstitutional, this judge tortured the Constitution. His 136-page ruling uses the highbrow language
of law to dismantle the law.

The liberal judiciary’s grandiloquent assault on the Constitution is closely linked with a broader cultural
trend toward casting off restraint. The contempt for law that this decision represents is one of the
most grievous plagues of our times. It infects every level of society from the child’s nursery to the
most exalted halls of power.

This opinion is part of a movement to disinfect the nation’s laws of their religious underpinnings and
retain only what survives rational-basis review. This will supposedly increase justice, expand freedom
and strengthen the nation. But that reasoning is already doing the opposite: increasing disorder and
division, enslaving people to their own lusts, and shredding the nation’s social fabric.

It calls to mind the darkest period in the history of ancient Israel—the period of the judges. As the
nation turned its back on God and His law, it suffered curse upon nightmarish curse. Scripture uses a
simple description of the moral and intellectual climate at that time—one that rings sickeningly true
today: “Every man did that which was right in his own eyes” (Judges 21:25).

Quoting that verse in his 2001 article “Justice and Our ‘Evolving Constitution,’” the Trumpet’s editor in
chief wrote, “This was the condition of our biblical forefathers—just before their nation collapsed and
they went into slavery!”

Watch for history to repeat itself. •

Joel Hilliker’s column appears every Wednesday.

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