Written by Carlos T Mock, MD   

Independence Day and the separation of powers: The Legal Branch
By Carlos T Mock, MD
July 4th, 2010


As we celebrate the birth of our country, I especially celebrate the wisdom of our Founding Fathers in establishing a government ruled by separation of powers, with one branch specifically dedicated to protect the rights of minorities, like me—a homosexual—from the whims of the majority: The Judicial Branch of our government.

In Elena Kagan's confirmation hearings, conservative senators have made two things clear: their disdain for "liberal activist" judges and their fear she will be one. When conservatives talk about judicial activism, they have in mind a variety of Supreme Court decisions — legalizing abortion, hindering the death penalty, allowing flag-burning and preventing officially sponsored prayer in public schools. All these, they believe, ignored the plain words or the original meaning of the text.

But there is another decision that fits any definition of a liberal, activist approach. It came in a 2003 case, Lawrence v. Texas involving two men who were prosecuted after being caught by police having sex in a bedroom in a private home. Lawrence v. Texas, is a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy. Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexuals. This is a clear example of a minority being protected from the majority through judicial acts. Even though not decided upon equal protection grounds, sexual liberty supporters still hope that the majority decision will call into question other legal limitations on same-sex sexuality, including the right to state recognition of same-sex marriage, and the right to serve openly in the military.

Helped by the landmark civil rights case, Loving v. Virginia, in which the United States Supreme Court, by a 9-0 vote, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v. Alabama (1883) and ended all race based legal restrictions on marriage in the United States by ruling that Virginia's anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

"Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State." Loving v. Virginia

That's why the lawyers from both sides of Bush v. Gore—Theodore Olson a Washington, D.C. lawyer and Republican Solicitor General, and David Boies a liberal lawyer who argued for Mr. Gore, joined forces in fighting for same sex marriage in California. The lawsuit was filed by four same-sex couples after California voters approved Proposition 8 in November 2008. The measure, which affirms that marriage is between one man and one woman, was placed on the ballot after the California Supreme Court ruled same-sex marriage to be a right in May 2008.

Again, The judicial branch is defending the rights of minorities (gay and lesbian tax paying citizens) to be denied a constitutional right by a suffrage referendum from the heterosexual majority. Attorney Ted Olson, making the closing argument against Proposition 8, contended that proponents had failed to show that same-sex marriage would harm the institution of marriage or impede society's interest in procreation. He compared the situation of gay couples to that of slaves. Under slavery at the time of the nation's founding, slaves could not be married legally, and that being prohibited from marrying was "the very essence of slavery," he said. Mr. Olson said there was no logical reason for voters to support Proposition 8, and therefore they must have acted out of "animus."

Dr. Carlos T Mock is a native Puerto Rican who resides in Chicago, IL and Three Oaks, MI. He has published four books and is the GLBT Editor for Floricanto Press in Berkley, CA. He contributes columns regularly to Windy City Times in Chicago, Ambiente Magazine in Miami, Camp Newspaper in Kansas City. He's had several OP-Ed published at the Chicago Tribune. Inducted in the Chicago Gay & Lesbian Hall of Fame October 18th, 2007. He can be reached at: http://www.carlostmock.com/