Possibilities for Legislative Checks on the Power of the Courts

The Supreme Court’s decisions mandating acceptance of homosexuality in law seems to many people, including Christians, to have settled the controversy as far as the law is concerned, with further effort to defend and advance traditional morality futile. Yet this is a critical time to influence what the future will be in the wake of the court’s imposition of its own view of the family, marriage and sexuality on the nation, according to Hadley Arkes, Professor of Jurisprudence and American Institutions at Amherst College, and who originally proposed the Born-Alive Infant Protection Act (2002), which prohibits children marked for abortion from being killed after birth. Arkes spoke at a November 20 presentation before the Capitol Hill staff gathering Faith and Law.

The principle the Supreme Court has used in its decisions, while appealing to such constitutional concepts as “liberty” and “equality,” in fact is the intensely moral claim that the traditional condemnation of homosexuality is oppressive, and any law or regulation proceeding from such condemnation is illegitimate. Arkes maintained, however, that Congress and other legislative authorities are not bound by the principles annunciated by the court, but only by the court’s judgment for litigants.

Consequently, Arkes said, we should not accept the principle of the Supreme Court’s pro-homosexual decisions, that human dignity demands that homosexuality not be subject to adverse judgments, but strive to limit the effect of those decisions as much as possible through legislation and regulation. This was done in the past when Americans were confronted with Supreme Court decisions which were against the principles that they believed in. Arkes cited such instances as the Dred Scot decision, which Abraham Lincoln opposed both as a candidate and as President, the Roe vs. Wade mandate of legal abortion, which has been limited through legislative action, and the War Powers Act, which has prevailed despite a Supreme Court decision declaring the legislative veto to be unconstitutional, as examples.

In the example of Lincoln, Arkes noted that Lincoln swore in his Presidential oath to uphold the Constitution, yet he could not have taken the oath of office to uphold the Constitution if he had felt that he was bound by the Dred Scot decision declaring that blacks could not be citizens and slavery could not be excluded from American territories, which the Supreme Court had said was part of the meaning of the Constitution. Lincoln even signed a law barring slavery from the territories, contrary to the Dred Scot decision. This was followed by administrative decisions impeding slavery. In contrast, Arkes noted that current presidential candidate John Kasich maintains that the Supreme Court same-sex marriage decision settles the matter of opposition in law to homosexual liberation, requiring that it be a thing of the past. Arkes pointed out that this is essentially the same claim about the court’s final and absolute authority that was made by Steven Douglas, who charged Lincoln with treason for not abiding by the Supreme Court’s Dred Scot decision. But Arkes insisted that the actual power of the court is to decide cases, not to annunciate principles which are binding on all governmental authority. Lincoln and others in the past were clear that they would respect the outcome of cases, and the court’s rulings for the litigants involved, but not the principles the court annunciated.

The resigned posture of today’s conservatives is further underscored by the difference in regulatory action. As an example, Arkes noted that early in the Lincoln Administration, patents were being denied to black applicants, in line with the Dred Scot principle that blacks cannot be citizens. But Lincoln dispensed with these regulations by executive action. In contrast, in recent years some have considered that it is necessary to accept fetal tissue in research, because not to do so would be contrary to Roe vs. Wade, regarding that decision as the supreme law of the land. But this is not necessary, Arkes maintained, since Roe vs. Wade is not law, only a judgment by the Supreme Court.

This shows the imbalance in the current political pattern, he said, with social conservative principles regarded as legally excluded by what the Supreme Court annunciates as supreme law, while liberal/left leaders accept the principles annunciated in court rulings only if it is convenient for them. As an example, Democrats have supported the War Powers Act (1973) even after the Supreme Court had ruled the legislative veto to be unconstitutional (1983). Yet the War Powers Act is an example of the legislative veto, so effectively it is held that the Supreme Court’s action in the legislative veto applied only to that case in which a decision was rendered. Similarly, the Born-Alive Infant Protection Act, crafted, as noted above, by Arkes, limited the scope of the Roe vs. Wade by declaring that children marked for abortion at some point have a right to life (the act identifying that time as at least the time after they are born). The nation needs to recover the right of Congress to speak to issues the court has addressed, Arkes said. Social conservatives should now aim to limit the scope of the Supreme Court’s pro-homosexual rulings. He also urged that Americans note Supreme Court Justice John Marshall’s maxim that the court’s power is co-extensive with the reach of American law. He said we must insist and act on the “flip side” of this, that legislative power is coextensive with the authority of the court. The Supreme Court cannot assign itself a monopoly of power in limiting this legislative right, Arkes maintained.

Arkes said that the Supreme Court has “brought to the edge of completion the project of radically changing the country.” This is at least true with respect to sexual mores. This, he said, is because court decisions have been important in altering the sensibilities of the country. While the real influence of the court on public opinion may be debated, it is clear that the Supreme Court has included in the reasoning of its constitutional decisions supporting homosexuality clear statements that adverse judgments against homosexuality in law are oppressive, and more generally that people have a constitutional right to make the decisions they want in sexual matters. This really is the heart of the argument of homosexual liberation, and this viewpoint indeed has increasing public support.

As an example of how readily not only the general American public, but even American conservatives, assume that the court’s pronouncements are final in determining the framework for the nation, Arkes pointed to Clement Haynesworth, the first conservative Supreme Court nominee defeated by the Left, who claimed that the principle of Roe vs. Wade requires that states not protect infants who had been marked for abortion from being left to die. This was held to be necessary to achieve “effective abortion.” They could not be protected by legislation. Arkes proved otherwise with the Born Alive Act, which still has no penalties, but establishes the principle that allowing infants to die is wrong.

Arkes claimed that if Congress had acted in 1973, when Roe vs. Wade was issued, abortion would have been scaled down. There would have been no need to overturn Roe vs. Wade, as the Supreme Court would not have substantially prevailed, he maintained. Over the decades since Roe vs. Wade was issued, however, some legislation has been passed which has limited the principle that human life can be destroyed to support the personal autonomy of the mother. The Born Alive Act is an example of such legislation. Without it, the justification for killing children marked for abortion would have been extended to other reasons (here legislative action stopped the first step in this train, Arkes maintained).

Today, it is crucial to understand that same-sex marriage cannot be allowed to become deeply embedded in law, he said. We should “put something on the table” for restoring marriage again. Arkes suggested a DOMMA (Defense of Monogamous Marriage Act), which would restrict marriage to a legal arrangement of two persons in federal law. He asserted that “the Supreme Court teaches, but the polis shapes moral character.” In confronting the current grave situation faced by Christians and social conservatives, it will not do to give up on politics and try to “change the culture.” We must “summon wit and nerve to put something on the table now” with respect to marriage.