May 27, 2015

Revolution by Judicial Fiat

While a common view is that social conservatives have “lost” the culture war, little other result was possible due to the power of the U.S. Supreme Court. This point was made clear at a presentation at the Family Research Council on May 8, which reviewed the judicial decisions issued, political moves made, and ideological positions taken in the mid-twentieth century that led to the current collapse of marriage, morality, and the family.

William Duncan , Director of the Marriage Law Foundation (with a mission of re-affirming traditional definition of marriage as union of one man and one woman), offered one of three presentations, his focusing on the Supreme Court’s decisions which preceded its decisions on homosexuality in the 1990s and 2000s.

Duncan began by noting common judicial opinion about marriage and the family before the sexual revolution, citing a 1952 decision from the California Supreme Court in which marriage was held to be “a great deal more than a contract, ‘the family is the basic unit of our society, the center of personal affections … it channels biological drives that might otherwise become destructive, it insures the care and education of children in a stable environment, it established continuity from one generation to another.’” Although it would be the 1970s before there was a radical departure from this understanding, the 1960s saw the decisive shift that made everything that came after it possible.

Language such as that of the 1952 California decision dropped out of usage at the U.S. Supreme Court, and a new understanding of marriage and the family was foreshadowed in the 1965 Griswold vs. Connecticut decision. This decision, the result of a lawsuit by Planned Parenthood, declared a Connecticut law prohibiting artificial contraception to be unconstitutional. This was found to violate a “right of privacy” which was held to exist in a marital relationship. Although speaking favorably of marriage, Duncan noted that the Griswold decision backed away from the concept of marriage as a permanent union of man and woman, and referring to it as an “association” which would “hopefully” endure. Earlier court decisions would have referred to marriage as a “union” or an “institution,” Duncan said. In addition to downgrading the understanding of marriage from a vital union which forms “the basic unit of society,” and concerned with children, the Griswold decision strengthened the right of sexual choice, saying that the choice of a married couple to use contraception is protected by the intimate nature of marriage, and is grounded in a law “older than the Bill of Rights” (and thus presumably older than the Constitution), although it was buttressed with broad statements held to point to a right to privacy drawn from the First, Fourth, Fifth, and Ninth Amendments to the Constitution. The right of privacy was thus made a constitutional doctrine, and violation of it a violation of the person, although at this point, this powerful new constitutional doctrine was kept within the marriage relationship, indeed, it was in some measure justified by being a right that pertained to marriage.

The truly radical departure from the traditional understanding of marriage and morality occurred in 1972, Duncan observed, in the Eisenstadt vs. Baird decision. This decision extended the constitutional “right of privacy,” which gave a right to use contraception, to cases of non-marital intercourse. This was done by declaring the “right of privacy” to be an individual right, not one that could be restricted to marriage. And to do that, the court deconstructed the traditional idea of marriage. The court denied that a marriage was an “independent entity, with a mind and heart of its own,” but remains the association of two individuals, a radical departure from the traditional Christian doctrine, derived from the words of Jesus, that two persons become one in the union of marriage (Matt. 19:4-6; Mk. 10:6-9). To state the obvious, giving any sort of rights or dignity or respect to non-marital intercourse, which in Christian and other traditional morality is regarded as among the gravest of sins, was a truly radical departure from the past. The decision did not directly invalidate laws against fornication or adultery, however, but the right to contraception becomes a right fundamental to personhood whether a person is married or not. Thus, Duncan claimed, the Eisenstadt decision reduced marriage and the family to “a mere lifestyle choice.” The right of sexual choice that the Eisenstadt decision introduced is “an individual right, not the right of an entity of two people who have joined together in a binding union.”

The Supreme Court’s subsequent decisions pertaining to sexual relations were shocking to a large part of the American public, but “the logic relentlessly follows from” this radical departure from the traditional understanding of marriage and morality, according to Duncan. Some of the most radical decisions of great import today quickly followed. The Roe vs. Wade and Doe vs. Bolton decisions (both issued in 1973), which established a constitutional right to abortion were based on the (now individual) right to privacy, a right to choice in child bearing the state was held to infringe upon by prohibiting abortion. In the Department of Agriculture vs. Moreno case, (also issued in 1973), the court voided a Congressional provision restricting food stamps to only those families composed of members related to one another. Nontraditional (“hippie”) families were excluded. The court did not challenge the use of families, rather than individuals, as the recipients of food stamps, but found unconstitutional the restriction of food stamps to natural families. Although use of the natural family as a criterion to receive food stamps would be very reasonable in a pre-1960s environment, both to prevent fraud and to reinforce the ideal of the natural family, the court held the law resulted from “a bare desire to harm” persons living in these non-traditional relationships. With traditional marriage and the family no longer an ideal in law due to the Eisenstadt decision, it was held that only unwarranted hostility could explain Congressional intent. This decision was crucial to decisions in recent years finding laws resisting the advance of homosexuality to be based on “impermissible animus.” Other decisions found laws requiring spousal consent to abortion to be unconstitutional, and laws which tend to inhibit access to contraceptives (including abortion) to be unconstitutional. This, Duncan said, shifted the right to abortion from a “negative right” (not to be restrained from aborting a child) to a positive right (to have access to abortion guaranteed).

The concept of marriage as nothing more than a personal expression of autonomous individuals reached an apogee in the Planned Parenthood vs. Casey decision (1992), which sustained the earlier Roe vs. Wade decision, and which infamously declared that the liberty guaranteed by the Constitution involves the right to define one’s own reality and existence. A completely unworkable principle as regards life in general, it is used by the court to protect the individual from the consequences of his or her sexual choices. Marriage becomes simply a choice of “two autonomous individuals” to engage in a joint project of “self expression and self creation.” Today’s “contraceptive mandate,” imposed by the Health and Human Services Administration as part of the implementation of the Affordable Care Act (Obamacare), which requires employers to pay for contraceptives and abortion inducing drugs regardless of their conscience convictions, follows the earlier issued court decisions aimed at protecting individuals from the consequences their sexual choices, Duncan noted.

It might be added to Duncan’s comments that this understanding of sexual choice as a “positive right” highlights the most disturbing aspect of the post-1960s marriage and morality jurisprudence, namely that is animated by a moral spirit which is not merely non-Christian, but really anti-Christian. By reasonably claiming that what violates marriage violates the person, and then dubiously claiming that the choice of contraception is obviously derived from that, the court made denial and punishment of sexual choice to be immoral and oppressive, an attack on the person. By extending this right outside of marriage as an individual right, a wholesale attack on Christian sexual morality was possible, since in Biblical morality, all sexual activity outside of marriage is shameful and due punishment. The court’s later (1990s and beyond) abortion and homosexuality decisions especially are notable for their tone of scolding the American public; the Casey decision implying that the public is lawless if it doesn’t accept court prescribed morality, the Romer, Lawrence and Windsor cases pertaining to homosexuality attacking the public for “irrational hate” and impermissibly enshrining Judeo-Christian morality in law. But holding sexual choice to be a matter above public decision making is a natural result of holding that any restriction on this choice is a personal attack, forbidden by a law “older than the Bill of Rights.”

Through these decisions, the Supreme Court has made itself “the ultimate arbiter of what marriage and family means, and what policies the states are allowed to pursue, and the federal government as well.” Duncan held that the true principle the Supreme Court has followed in its sex, marriage, and family decisions since the 1960s is the principle annunciated by Vladimir Lenin: “the success of the revolution is the supreme law.”

While Christians and social conservatives may lament national apostasy from God and His revelation, we need to remember that the result of the sexual revolution is only partly, and not decisively, the result of changing public beliefs and practices. The reason the sexual revolution prevailed is that it was imposed on the nation by the Supreme Court, and the inability of social conservatives over a number of years to decisively change the composition of the court. But however the sexual revolutionaries prevailed, and they did so undemocratically, it cannot change the truth of God’s revelation. For the non-religious or nominally religious, the success of the sexual revolution may be welcomed or regretted, but in any case accepted as final. But what Christians have always been involved in is not a mere political struggle, or even a cultural struggle. In those cases, there comes a time to accept defeat. Our non-negotiable commitment is to obey God, and so what we are engaged in is a religious struggle, which can therefore never be abandoned. The imposition of a sexual ethic hostile to the Biblical revelation gives believers the possibility of displaying the truth about marriage, sexuality, and the family as, Duncan concluded, “a pearl against a black background.”

11 Responses to Revolution by Judicial Fiat

  1. Mark Brooks says:

    The obvious answer is that social conservatives must control the federal judiciary, and in particular the Supreme Court and Circuit Appellate courts. We must make having judges and justices who will repeal these bad decisions a priority, and we must impress on our elected officials we will hold them accountable for a lack of diligence in pursuing this aim.

    This is not at all impossible. One fast way to change the balance of the Supreme Court would be to increase its membership, as clearly provided by the U.S. Constitution. If we have 4 solid conservatives on a 9 member court, then adding 4 more solid conservatives would fundamentally change the balance of the court very quickly and create court super-majorities to reverse prior bad decisions.

    We have to hold people’s feet to the fire and that particularly means senators, whom we must deal with ruthlessly if they make commitments and then try to backpedal away from them. No elected official should feel safe in the primaries or the general election if they don’t or won’t go along with this program. No more Arlen Specters.

    We will probably have to use some tactics we wouldn’t ordinarily want to use in order to bring back a proper constitutional balance. A lot of judges will have to be removed from the bench by means that, while legal, will no doubt make our enemies howl with outrage. Well, let them howl. That’s one way of knowing that we are achieving our goals.

    Of course, a key step will be eliminating open primaries. The Republican Party establishment instituted open primaries in the 90’s in an effort to reduce conservative influence in the Republican Party, and it worked most notoriously in the case of Thad Cochran. Open primaries violate the 1st Amendment freedom of association, and need to be eliminated as soon as possible. Eliminate open primaries, and then getting the conservative legislators and presidents we need to effect change in the federal judiciary becomes much, much easier.

  2. MarcoPolo says:

    An informed article that somewhat laments the loss to Conservative Christians, but also reminds us that all things Societal evolve with the changes in a society.

    Granted, those who follow the Bible might find themselves on the outside of the legal perimeter, but needn’t, as they are still free to practice their respective construct of marriage and personal liberty. They just won’t be able to dictate their religious restrictions on the general public.

    Meanwhile, those of us who recognize the natural evolution of Man and Society can rest assured that our hard fought freedoms for autonomy, are secured in Law.


    • RickPlasterer says:


      What people do not see is that the regime the court has decreed does not merely “allow” or “legalize” what was once forbidden, but requires public acceptance of it. What if sexual relations outside of marriage are harmful? Social conservative think tanks believe they can show that they are harmful, their opponents strongly disagree with them. But whatever the outcome of that debate, its results cannot be part of law and policy even if the sexual traditionalists are right. The court has decreed that sexual choice is a matter of individual rights. What I called in the article the “moral spirit” or the court’s decisions, that Christian sexual morality is oppressive, is now becoming part of legislative and executive acts. Catholic charities, for instance, do enormous good on almost anybody’s reckoning, but they are, first of all, an exercise of religion. As such they cannot violate Catholic doctrine (as in providing children to homosexual couples, or now, even homosexual married couples). Yet the law in some jurisdictions requires that they do, and so they cannot function. And so i’m afraid it is not the case that traditionalists are “free to practice their respective construct of marriage and personal liberty,” as you maintain.

      I concede than in a pluralistic society like our own, religious doctrine must be justified in ways the general public can entertain if it is to be part of public decision making. But under the court’s sexual revolution jurisprudence, traditional Christian morality is, ipso facto, excluded.


      • MarcoPolo says:

        Thank you for your cogent and sensitive response, Rick.

        Yes, “Our Times are a changin'”, to quote a Sixties lyric.
        And with that, so too is everything else. I understand that for those whose religious faith demands some stalwart constructs, these changes pose more than challenges, they pose trepidation.

        For that, I certainly can empathize. But to mourn such changes as seems the case, is like trying to maintain a hole in the water after removing one’s finger from it.

        As for Charities and their God ordained Mission, I certainly hope their dichotomy of serving Humanity isn’t limited to just those who they deem worthy through a lens that limits their full acuity.

        If I were to recall a single decision by the Supreme Court that I personally felt was “wrong”, it would be Citizens United. And I’m not alone in that sentiment, but I also acknowledge that your opinion is also backed by many, many well intentioned people.

        One SCOTUS decision deals with Religious behavior, the other with Political-Corporate behavior. Both hold challenges for ALL of us, and with that, I trust we’ll just have to see!

        Thanks, and best wishes.

    • Bruce427 says:

      Marco: “Granted, those who follow the Bible might find themselves on the outside of the legal perimeter, but needn’t, as they are still free to practice their respective construct of marriage and personal liberty.”

      Hi Marco,
      I believe I have interacted with you before on other forums.

      What you say is not precisely true re: “they [Christians] are still free to practice … personal liberty.”

      The Progressives are trying mightily to restrict the “Practice” of Christianity to the confines of the Church building — and severely limit its expression outside of that building (i.e. they don’t mind you ‘being’ a Christian, so long as you don’t actually practice your Faith in your public life).

      As examples, I cite the two recent cases where a Christian baker and Christian photographer were both successfully sued for declining to participate in the celebration of homosexual weddings.

      Now mind you, neither of these business owners had any issue with providing their services to homosexuals on a day-to-day basis but, according to the teachings of their Faith, they could not be participants in the *celebration* of an egregious immoral activity.

      So, they were not granted the freedom (personal liberty, as you put it) to practice their Faith.

      The way I see it is this: if the Supreme Court is going to force homosexual marriage upon the nation by edict, then to retain freedom of Religion, Christians must be free to opt-out of ceremonies that are antithetical to their Faith.

      By fiat the Supreme Courts grants Homosexuals the “ability” to marry (there will never be a “moral right”), and Christians get the freedom to opt out of participating in those ceremonies without fear of legal or government retribution.

      But I fear this will not happen. In both of the above cases (baker and photographer) the business owners graciously offered to refer the homosexuals to other businesses that would happily do their weddings. But in both cases, the homosexuals were not satisfied with that, they sued to force the business owners to comply with their wishes or face financial ruin.

      Ironically, after many years of complaining that they don’t want other people’s views on morality forced upon them, the homosexual couples set about to force the acceptance of *their* moral views upon the Christian business owners.

      But ultimately, and irrespective of the Constitution (which under Progressive interpretation has become more malleable than hot butter), Religious Freedom in America is dead. The “term” may still exit, but the reality is a vanished vestige of a once-great nation.

      God help us.

      • MarcoPolo says:

        Firstly, I too, believe that those cases mentioned, seem strangely “un-American”, and smacks of Gestapo-esque

        authority. I’m guessing that the Defendants were heavily “lawyered-up” to bring forth that judgement.

        I think we both agree that the Courts will do their very best to make litigation the game of the day. That’s sad, but it is an available avenue of pursuit for what some feel is an injustice.

        As a business owner myself, I too make judgements about those who seek my services. The old adage of some people being difficult is probably benign by some comparisons, but I truly understand why some businesses wouldn’t want to be even be remotely involved with some clients.
        I always thought that as a proprietor of a business, I had the right to determine who I wanted as a client.

        Granted, if I were still in the sign business, and a KKK member requested a sign stating derogatory comments about Blacks, I’d feel perfectly comfortable telling them how I felt as I refused their patronage. And by this precedence I’m assuming I could be sued?

        I’ll admit, I get a little squeemish whenever I hear a client go on about their religion, whatever religion it is!
        I just think business, is for business, and not for proselytizing.

        That shouldn’t have any bearing or encumbrance upon individuals who seek to live their lives (religiously), but maybe it does affect the way business is to be done in our time?!

        We shall see!

        Thanks for your honest exchange.

        • Bruce427 says:

          ** I truly understand why some businesses wouldn’t want to be even be remotely involved with some clients. **

          I founded, owned, and ran my own business for thirty six years and during that time I “invited” several “customers” to just leave.

          One was a middle-aged Indian (India) lady (doctor’s wife) who always took up a lot of my sales staff’s time with questions, but never bought anything. She would pump everyone for information, and then mail order the items she had inquired about. She even approached one of my tech guys to install some of them for her. My sales staff reached a point where no one wanted to wait on her and would gravitate to other areas of the store when they spotted her coming.

          One day she complained to me about the lack of attention and I asked her how many time she has visited my store in the last five years. She replied, perhaps 40-50 times. I then asked her how many items she had purchased during those visits and she sheepishly replied “none.”

          I then told her that was the reason my (commission-based) sales staff did not want to wait on her was, she used them as a knowledge-base to educate herself so she could purchase what she wanted via mail-order — and that she had made it apparent she was not a potential customer.

          She became upset and left and never came back. It was not my intention to make her angry, I was just being honest. We just couldn’t afford to waste thousands of dollars worth of time with her with no expectation of making a sale. Every business has similar-type customers.

        • Bruce427 says:

          “I just think business, is for business, and not for proselytizing.”

          Of course, the photographer and baker were not engaged in proselytizing — they did not attempt to convert the homosexual couples to Christian beliefs on morality. They simply told them that their religious moral beliefs would not allow them to participate in same-sex weddings.

          To maintain some semblance of Religious freedom, you really cannot ask a Christian to suspend HIS moral beliefs in the pubic realm while allowing homosexual couples to not only practice THEIR beliefs (in public), but be allowed to legally force others to conform to those beliefs.

          That would be the equivalent of the Progressive agenda to limit the Practice of one’s Faith to the confines of the Church building.

          • MarcoPolo says:

            And that’s where we differ.

          • Bruce427 says:


            You know, Marco, it’s good to be able to have an exchange of ideas in a rational discussion. You don’t see that much on the comment boards.

  3. Dave Combs says:

    Actually the solution to judicial activism is to make their decisions state business. Mark Levin has an amendment that would allow either Congress or the states to over ride a liberal effort to legislate from the bench. The Convention of States has an Article V convention solution for just about every problem.

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