Last year, senators avoided action by pleading that no federal court had yet ruled against state marriage laws or the federal Defense of Marriage Act. That excuse no longer holds; Congress is now faced with judicial supremacy in flagrante delicto.
Judge Stanley Birch must be chuckling to himself about how he lectured congressmen in the Terri Schiavo case as though they were schoolchildren. Birch implicitly ordered Congress to shut up and let independent judges make the important decisions without accountability.
Congress should not wait for a higher federal court to act on Judge Bataillon's impudence, a process that might take years. Congress should immediately take this issue away from the federal courts by denying jurisdiction over any claim that the definition of marriage in federal or state law violates the U.S. Constitution.
It's also time for Congress to use its 14th Amendment, Section 5, power to clarify the meaning of "equal protection of the laws" in Section 1. It certainly does not mean, for example, that everybody must pay the same taxes or receive the same welfare benefits.
We have no assurance that higher federal courts will overturn Bataillon's ruling. It will be argued, wrongly I believe, that his decision is the logical progeny of two Supreme Court decisions, Romer v. Evans and Lawrence v. Texas, which are striking examples of the Supreme Court's willingness to twist the Constitution to attack Judeo-Christian values.
Justice Anthony Kennedy, who is fond of citing foreign sources, wrote both those decisions. The mischief of those decisions is becoming increasingly apparent and should stimulate renewed calls to consider impeachment.
Will Congress just grumble but do nothing to stop out-of-control judges from replacing self-government with the Imperial Judiciary? If Congress fails to act, we can expect similar atrocities to continue as supremacist judges remake America into a society that rejects traditional marriage and even banishes the Pledge of Allegiance, the Ten Commandments and the Boy Scouts.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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