• The Precursors to Obergefell

    Defending Marriage Staff - July 20, 2016

    Editor’s Note: The text of this article was taken from a court opinion authored by Alabama Chief Justice Roy Moore, in which he addressed the effect of Obergefell v. Hodges on the courts of Alabama. You can read the opinion in it’s entirety here.


    For the last 50 years, the Supreme Court has consistently misused the Fourteenth Amendment to destroy state laws that protect the marital relation and its offspring. Obergefell is the latest fruit of this corrupt tree. Matthew 7:17-18.

    In Griswold v. Connecticut, 381 U.S. 479 (1965), the Court found in “penumbras, formed by emanations” from the “specific guarantees in the Bill of Rights,” a right of “privacy” for married couples to use contraceptives. Id. at 484. That opinion, explained a dissenter, “prevents state legislatures from passing any law deemed by this Court to interfere with ‘privacy.’” Id. at 510 n.1 (Black, J. dissenting). By holding unconstitutional a law that was not forbidden by a specific provision of the Constitution, the Court quietly assumed the power to negate any state legislation of which it disapproved. As Justice Black stated:

    “[N]o provision of the Constitution ... either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have.”

    381 U.S. at 520-21 (Black, J., dissenting) (emphasis added).

    Speaking 50 years before the issuance of the majority opinion in Obergefell, Justice Black presciently anticipated its reasoning:

    “I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes.”

    381 U.S. at 522.1 Assuredly, Justice Black would not have agreed with Justice Kennedy’s grandiloquent “nature-of-injustice” passage and his invocation of the right of the Court to draw limitless new rights out of the bottomless depths of the Due Process Clause “as we learn its meaning.”2 Truly, the less basis the majority has for its innovations upon the Constitution, the grander is the language employed to justify them, as if high-blown rhetoric could compensate for the absence of constitutional substance.

    Griswold was the first car on the illicit and unconstitutional train that led from contraception to abortion and then on to sodomy and same-sex marriage. In 1972, the Court extended the penumbral right of contraception to the unmarried, deconstructing the union of husband and wife that infused Griswold into merely “an association of two individuals.” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). “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.” 405 U.S. at 453. Venturing beyond “the sacred precincts of marital bedrooms,” Griswold, 381 U.S. at 485, the Court anointed with constitutional protection the use of contraceptive devices by the unmarried, setting its seal of approval upon fornication. And if anyone found the extension of Griswold to the unmarried to be less than convincing, the Court had ready at hand an additional rationale: Allowing the use of such devices by the married, but not the unmarried, violated the Equal Protection Clause. The married and the unmarried, the Court amazingly held, were “similarly situated” in regard to contraceptive use. Thus, “the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons.” Eisenstadt, 405 U.S. at 454. See John Hart Ely, The Wages of Crying Wolf, A Comment on Roe v. Wade, 82 Yale L.J. 920, 929 n.68 (1973) (commenting on “the Eisenstadt Court’s obviously strained performance respecting the Equal Protection Clause”).3

    Chief Justice Warren Burger dissented. Seeing nothing in the Fourteenth Amendment that prohibited a state from regulating the distribution of contraceptives, he noted that the Court had “seriously invade[d] the constitutional prerogatives of the States” and “passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections.” 405 U.S. at 467, 472 (Burger, C.J., dissenting).

    In Carey v. Population Services International, 431 U.S. 678 (1977), the Court took a further step down the road of immorality by crowning with constitutional dignity not only the general provision of contraceptives to minors but also the requirement that they be available over the counter. Thus saith the Due Process Clause. Justice William Rehnquist mused on the likely reaction of those who fought the Revolutionary War to establish the Bill of Rights and the Civil War to enact the Fourteenth Amendment:

    “If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men’s room of truck stops, notwithstanding the considered judgment of the New York Legislature to the contrary, it is not difficult to imagine their reaction.”

    431 U.S. at 717 (Rehnquist, J., dissenting). Declining to engage in detailed analysis of the majority’s patently “indefensible result,” Justice Rehnquist explained that “no logic chopping can possibly make the fallacy of the result more obvious.” 431 U.S. at 718.

    Having served the sexual revolution in the area of contraception, the Court then made constitutional the taking of the life of an unborn child. In Roe v. Wade, 410 U.S. 113 (1973), as it did in Griswold and Eisenstadt, and later in Carey, the Court tackled the difficulty of rationalizing the creation of a new constitutional right that had no colorable basis in the Constitution. The Court ultimately asserted that the right to privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty ... or ... in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153.

    Justice Stewart, concurring, 410 U.S. at 167-71, suggested abandoning the effort to cobble together “right-of-privacy” emanations from the Bill of Rights and instead urged sole reliance on the word “liberty” in the Due Process Clause, an infinitely malleable term that has enabled the Court to generate custom-designed constitutional rights. Justice Rehnquist in dissent stated that Roe “partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.” 410 U.S. at 174. “To reach its result,” he added, “the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Id. Justice White, writing in the companion case to Roe, agreed: “I find nothing in the language or history of the Constitution to support the Court’s judgment.” Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting). As one commentator observed: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution,” Ely, Wages, at 935, and “is not constitutional law and gives almost no sense of an obligation to try to be.” Id. at 947.

    Obergefell is but the latest example of the Court’s creation of constitutional rights out of thin air in service of the immorality of the sexual revolution. Like Roe, Obergefell is no more than “an exercise of raw judicial power ... an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” Doe, 410 U.S. at 222 (White, J., dissenting).

    The incorporation of the sexual revolution into the Constitution continued in Lawrence v. Texas, 539 U.S. 558 (2003), which used the Fourteenth Amendment to find a right to commit sodomy that the high court had specifically rejected only 17 years earlier in Bowers v. Hardwick, 478 U.S. 186 (1986). Citing as “authority” Griswold, Eisenstadt, Roe, and Carey — a gallery of constitutional absurdities—the Court stated that “our laws and traditions in the past half century” “show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Lawrence, 539 U.S. at 571-72.4 Thus, the Court relied on a series of malformed decisions to justify yet another bizarre departure from moral sanity—and all in defiance of the right of the people to govern themselves.

    In language similar to that used in Obergefell, Justice Kennedy, the author of the majority opinion in Lawrence, stated:

    “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

    Lawrence, 539 U.S. at 578-79. Justice Kennedy unfortunately omitted the key consideration highlighted by Justice Black in his Griswold dissent: Amendments to the Constitution are the business of the people pursuant to Article V; they are not the business of the Court under Article III. Truth may not always be clearly seen, but the majority’s reasoning should not blind us to the reality that the Court seems determined to alter this nation’s organic law.

    Justice Scalia, dissenting in Lawrence, criticized the Court’s discovery of yet another sexual-freedom right in the Constitution: “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’ by a Court that is impatient of democratic change.” 539 U.S. at 603 (Scalia, J., dissenting). He also exposed the fallacy in Justice Kennedy’s “search-for-greater freedom” passage:

    “It is indeed true that ‘later generations can see that laws once thought necessary and proper in fact serve only to oppress’ ...; and when that happens, later generations can repeal those laws. But it 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.”

    539 U.S. at 603-04 (emphasis added).

    The Obergefell case is but the latest in “a history of repeated injuries and usurpations.” Declaration of Independence para. 2. Among the “long train of abuses and usurpations” cited in the Declaration of Independence was Parliament “declaring themselves invested with power to legislate for us in all cases whatsoever.” Id. Obergefell is the culmination, beginning with Griswold in 1965, of 50 years of judicial usurpation of the right of the people to govern themselves and, in particular, of the states to protect from attack “the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony.” Murphy v. Ramsey, 114 U.S. 15, 45 (1885).



    1. Justice Black is describing this philosophy, not agreeing with it. “For myself, I must with all deference reject that philosophy.” Griswold, 381 U.S. at 522 (Black, J., dissenting).
    2. Justice Holmes referred to this tendency of the Court to discover constitutional novelties in the Fourteenth Amendment as “evoking a constitutional prohibition from the void of ‘due process of law.’” Baldwin v. Missouri, 281 U.S. 586, 596 (1930) (Holmes, J., dissenting).
    3. One may reasonably surmise that in the era of fears about a population explosion, the Court felt that its duty to limit the reproduction of the masses superseded any fealty to the text of the Constitution. Eisenstadt represented the Court’s first sustained assault on sexual morality and laid the groundwork for future decisions that were consistent with a policy of reducing population growth, either through abortion (killing the conceived) or homosexuality (promoting nonreproductive sexuality). In a 2009 interview, Justice Ruth Bader Ginsburg stated: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” Emily Bazelon, The Place of Women on the Court, New York Times Magazine (July 7, 2009).
    4. “By placing a premium on ‘recent cases’ rather than the language of the Constitution, the Court makes it dangerously simple for future Courts, using the technique of interpretation, to operate as a ‘continuing Constitutional convention.’” Coleman v. Alabama, 399 U.S. 1, 22-23 (1970) (Burger, C.J., dissenting). As two scholars have noted, “[E]stablishing a tradition through reliance on Supreme Court cases is bootstrapping.” Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555, 1610 (2004).

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