It is a moral tragedy in multiple ways, and they all stem from one inescapable fact.  Every abortion kills a living human being.  No word game, subject change, or political spin can change that fact.  There have been nearly 50 million abortions since 1973 and, according to the pro-abortion Guttmacher Institute, the “decline in abortion incidence has stalled.”  More babies in America lose their lives to abortion every two days than American service members have been killed in Iraq and Afghanistan since 2003.

As President Ronald Reagan wrote on Roe‘s 10^th anniversary, the question is not when human life begins, but what is the value of human life?  That remains the question today.  Our Declaration of Independence says that every individual is created and given rights by God.  The federal government spends hundreds of billions of dollars each year on programs to help the poor, elderly, sick, or disabled.  Why?  It is nothing less than moral schizophrenia to say that the very same people who should be helped today could have been killed before they were born.

There is a glimmer of light peeking through this otherwise dark cloud.  After nearly four decades of pro-abortion propaganda and the drumbeat that abortion is a constitutional right, most Americans still oppose most abortions and a majority says that they are pro-life and that abortion is morally wrong.

Roe v. Wade is also a legal tragedy in the way it reached these morally tragic results.   Make no mistake, there is no right to abortion in the Constitution; the Supreme Court simply made it up.  Take a step back from the subject of abortion for a minute and think about what this means.  The Constitution is supposed to be the primary way that the people impose limits and rules on government.  The Constitution is written down so everyone will know what those limits and rules are.  George Washington said that the people’s control over the Constitution is literally the heart of our system of government.  Our freedom depends on it.  But when the Supreme Court changes the Constitution, as it did in Roe, it takes control of the Constitution away from the people, and their freedom along with it.

The phrase “judicial activism” gets tossed around a lot these days, as if it is nothing more than a label for any decision you do not like.  Judicial activism really means judges taking control of the law in order to produce certain results.  Claiming that there is a right to abortion in a Constitution that says no such thing, and using this made-up right to strike down state and federal laws, is as activist as it gets.

President Reagan wrote in his essay: “We cannot diminish the value of one category of human life – the unborn – without diminishing the value of all human life.”  Make no mistake about it; the end result of an activist judiciary that rejected our most cherished constitutional principles is the loss of 50 million innocent lives.  In Roe v. Wade, the Supreme Court used judicially tragic means to achieve a morally tragic end.  By highjacking the Constitution and creating this so-called right to abortion, the Supreme Court attacked not only the value of human life itself, but also the liberty of all Americans.  I hope that this decision has few anniversaries left.

For three decades, Andre Bamberski pursued the  rapist and murderer of his then-14 year-old daughter Kalinka, Dieter Krombach.  After offering a reward for his capture, Krombach was abducted from Germany and brought to France, where he had been convicted in absentia of causing a wrongful death in 1995.  Krombach, 76, will spend the next 15 years in jail, should he live that long.

Andre Bamberski is awaiting trial on charges of kidnapping.  Perhaps this is appropriate.  But what father cannot help but admire Andre’s dogged determination to see the man who assaulted and killed his daughter brought to justice?  To refuse to accept anything less than punishment for the monster who took his daughter’s life?

“History is a relentless master,” said John F. Kennedy.  “It has no present, only the past rushing into the future.”  History is relentless, in part, because men like Andre Bamberski refuse to let it elide quietly into memory.  That’s why Dieter Krombach is now in jail.  To borrow a phrase from the Anglican Book of Common Prayer, “Here endeth the lesson.”

The importance of this ruling is obvious and profound: If an explicitly religious organization requires employees to sign a doctrinal statement, and they do so of their own free will, that organization has every right to terminate the employment of those who no longer subscribe to the beliefs articulated in the group’s own statement of faith. In the words of World Vision president Richard Stearns, “our Christian faith has been the foundation of your work since the organization was established in 1950, and our hiring policy is vital to the integrity of our mission to serve the poor as followers of Jesus Christ”.

World Vision’s principled stand was stated by its VP and Chief Legal Officer, Steve McFarland, who noted that WV would stop taking federal funds before employing anyone who could not, in good conscience, support its doctrinal positions.

Secularists don’t understand the integrated nature of all faith-based activities: In any ministry, a person who welcomes guests at a reception desk is representing Christ as surely as the ordained minister behind the pulpit. Sacred and secular are not, for Christians, distinct domains. Jesus claims Lordship over all of life, and ministries recognizing this know they cannot but weaken their missions and ministries if they hire those who disagree with their beliefs.

Yet now, DOMA is under the sharpest attack in its history—despite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:

Q: What did Attorney General Eric Holder announce on February 23 about the administration’s position regarding the federal Defense of Marriage Act (DOMA)

A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Act—the one which limits the federal government to recognizing only marriages between one man and one woman—is unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.

This decision represents a shocking abdication of the Attorney General’s, and the President’s, constitutional responsibility to “take care that the laws be faithfully executed,” and sets a dangerous precedent for future executive refusals to defend existing law.

Q: What motivated this change of position?

A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn California’s marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex “marriage,” filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney General’s letter, just hours after the letter was released.

Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.

Q: Hasn’t President Obama opposed DOMA all along?

A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.

Q—How can the Administration justify such an about-face?

A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on “sexual orientation” are subject only to a “rational basis” test—the most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJ’s briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that “classifications based on sexual orientation warrant heightened scrutiny.”

Q: What does “heightened scrutiny” mean?

A: When a law creates a “classification” that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitution’s guarantee of the “equal protection” of the law. However, most laws are judged under a “rational basis” test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, “heightened scrutiny” usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to “sexual orientation.” It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.

Q: How did the Attorney General justify this call for “heightened scrutiny.”

A: Mr. Holder asserted that “a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable.” However, he cited only one source in support of this contention—one dated 1992. In a footnote, he further claims that “discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.”

In fact the theory that there is a “gay gene” or that people are “born gay” has been largely discredited by science since the early 1990’s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, “support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent” homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that “changes [in sexual orientation] . . . were not limited to sexual behavior and . . . self-identity. The changes encompassed sexual attraction . . . the core aspects of sexual orientation.”

Q: Who can defend DOMA if the Justice Department refuses to?

A: The courts have long recognized Congress’s vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.

Q: What would it mean if DOMA were struck down by the courts?

A: The immediate result would be federal government recognition of same-sex “marriages” that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck down—including in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.

Q: What should be done now?

A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex “marriage” must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an “emerging consensus” in favor of same-sex “marriage.” Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.

It is quite possible that the issue of same-sex “marriage” will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must “speak now, or forever hold your peace.”

Part 2

Part 3

Part 4

The Federalist Papers were designed to persuade their fellow citizens that a Constitution that defines, empowers and constrains the federal government was worth enacting. They succeeded in their project.

In our time, we are confronted by judges who believe the Constitution is not the carefully crafted text the Founders gave us but, rather, political putty onto which they can impress their personal beliefs and political vision. As Thomas Jefferson predicted, the Constitution has become, for those believe in legislating while presiding in a court, “a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”

Defenders of the activist courts claim that those who wish to constrain judicial overreach want to erode the independence of the judiciary. To the contrary:

• When a judge overturns the result of a state ballot election vote declaring what we have always known – that marriage is between a man and a woman;
• When a judge says that the National Day of Prayer is unconstitutional;
• When a judge believes she has the expertise to scrub multiple academic studies, not to mention the whole history of the Armed Forces’ warrior culture, in order to declare that military service for homosexuals is a “right,” and;
• When a panel of judges declares that same-sex marriage is a constitutional “right,”

those rejecting the right of judges to make such rulings are attacking not an independent judiciary but that judiciary’s willful rejection of that which it is sworn to uphold, the Constitution itself.

An independent judiciary does not mean judges should be untethered from the nation’s charter text, becoming laws unto themselves, legislating at will through the vehicle of judicial edicts. It means that when a judge or panel of judges rules consistent with the original meaning of the Constitution, they should not be bullied into unconstitutional jurisprudence. This is why federal judges have lifetime appointments; from the early days of the Republic, such appointments have been viewed as safeguards against political pressure.

In our time, many judges have become bullies, insistent on imposing their will upon our system of representative self-government and the people themselves. Thus, Justice Scalia’s assertion that the Constitution “means what it meant when it was written” is a shocking, retrograde, near-barbaric affront.

With the men who gave us The Federalist Papers, let us stand for an independent judiciary — independent from political shoving and pulling, but never independent from that which gives the judges themselves the right and power to serve: The Constitution.

September 09, 2010

WASHINGTON, D.C. – Family Research Council President and Marine veteran Tony Perkins released the following statement in response to today’s decision by a California federal judge overturning the law on open homosexuality in the military, most commonly referred to as “Don’t Ask, Don’t Tell”:

“It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed. Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them,” concluded Perkins.

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OFFICIAL TRANSCRIPT (CBS) [PDF]

Same-Sex Marriage Decision: “Far From Over” (CBS)

Family Research Council compares Prop. 8 to Roe; says fight not over (The Hill)

Perkins: We hope ‘sanity will reign’ on gay marriage ban (Politico)

Activists Gear Up for Next Round on Gay Marriage (CQ Politics)

Gay-Marriage Ruling Should Be Upheld, Ex-Solicitor General Ted Olson Says (Bloomberg)

Prop 8 attorneys Theodore Olson and David Boies say judge’s ruling is ‘constitutionally sound’ (NY Daily News)

Olson backs gay marriage ruling (Boston Globe)

The nuclear bomb of the homosexual marriage movement would be a decision by the United States Supreme Court declaring that it is unconstitutional to deny homosexual couples the benefits, or perhaps even the actual status, of civil marriage.

The likelihood of such a ruling appeared to increase exponentially when the Supreme Court struck down state laws against homosexual sodomy in the case of Lawrence v. Texas, which was decided on June 26, 2003.

Dissenting justice Antonin Scalia warned as much in his scathing dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestialiy, 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: the Court makes no effort to cabin the scope of its decision to exclude them from its holding.[i]

However, a close examination of the majority opinion seems to cast doubt on Scalia’s sweeping claim that there was no such effort to “cabin” the ruling’s scope. For example, Justice Anthony Kennedy’s decision says this:

The laws involved in Bowers and here . . . seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.[ii]

In other words, he concedes that these relationships may not be “entitled to formal recognition,” i.e., marriage. He goes on immediately after to say:

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.[iii]

Presumably he’s speaking of marriage here, and accepting that same-sex marriage, like adultery, might constitute “abuse of an institution the law protects.” Then in his conclusion, Kennedy again says:

The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[iv]

Likewise, in her concurring opinion (basing her decision on equal protection considerations rather than privacy and due process), Justice O’Connor wrote:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.[v]

In referring to “national security or preserving the traditional institution of marriage” as a “legitimate state interest,” she seems to be clearly saying that this case does not involve gays in the military or homosexual marriage.

Scalia, though, remained skeptical:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

Although I greatly respect Justice Scalia, I don’t fully agree with this last sentence. As I have noted earlier, opposition to homosexual marriage does not have to be grounded only in disapproval of homosexual couples, but can rest in the recognition that their relationships are by nature something different from marriage.

While the majority opinion did have passages that appeared to distinguish the issues in Lawrence from those involved in marriage, yet other passages did indeed hint at a link. For example, Kennedy said:

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[vi]

In another passage, Kennedy cited the 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey (which upheld a right to abortion). Kennedy declared:

The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

He then went on to state, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”[vii]

Legal scholars on the other side of the debate have drawn very similar conclusions to Scalia’s. Liberal Harvard Law professor Laurence Tribe says, “Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time. . . . [T]he underlying theory and most important passages of Lawrence suggest ready (though not immediate) applicability of the holding to same-sex marriage . . . .”[viii]

In summary, a close reading of the Lawrence decision suggests that advocates of same-sex “marriage” could claim that it serves as precedent for same-sex “marriage”—but it would not inevitably do so.

[ii] Ibid.

[iii] Ibid.

[iv] Ibid., 17-18.

[v] Ibid., 7.

[vi] Ibid., 6.

[vii] Ibid. (Kennedy), 13.

[viii] Laurence H. Tribe, “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak Its Name,” 117 Harvard Law Review (April, 2004): 1945, 1949

However, some media outlets have been reporting that this ruling is unprecedented because it is the first time that a federal court has tried to strike down a state marriage amendment on federal constitutional grounds. This is completely untrue. On May 12, 2005, U.S. District Court Judge Joseph F. Bataillon issued a very similar ruling striking down Nebraska’s marriage amendment. This ruling, however, did not stand—it was struck down, unanimously, by a three-judge panel of the Eighth Circuit on July 14, 2006.

The Eighth Circuit, like a majority of courts that have ruled on this issue (including the state Supreme Courts of New York, Washington, and Maryland), declared that the state’s interest in promoting responsible procreation provided a rational basis for distinguishing between opposite-sex and same-sex couples in the definition of marriage. Yet Judge Walker’s decision dismissed this compelling argument with the casual observation, “Never has the state inquired into procreative capacity or intent before issuing a marriage license.”

The Eighth Circuit’s ruling explains why this is not a compelling argument for mandating same-sex “marriage.” Excerpts are below (citations omitted):

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children . . . . But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.”

“Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required.” Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits.

We hope that the Ninth Circuit—and/or the Supreme Court—will follow this reasonable precedent.