In Memoriam to Justice Scalia


Dear Marriage Supporter,

We all were shocked on Saturday to learn of the unexpected passing of Justice Antonin Scalia during a hunting trip in Texas. Justice Scalia was a giant of a man in every way. He was a faithful Catholic, loving husband and devoted father. As a lawyer and judge, his towering intellect helped shape the law and counter the unceasing pressure by liberal jurists to move the country to the left based on their concept of an "evolving" constitution.

While I didn't know Justice Scalia personally, I know some in his immediate family, including his son, Fr. Paul Scalia, a Roman Catholic priest who has been a strong and consistent ally in the fight for marriage. The Scalia family is a model for faith, love, togetherness and service. These are values instilled in the family by its patriarch, a genuinely good and decent man. Our prayers go out to the Scalia family.

Justice Scalia was often referred to as a conservative, but in reality he was a constitutionalist. He profoundly believed that judges were duty-bound to rule on cases according to the original intent of the constitution, not based on sympathies toward what a judge thought the law should be.

Justice Scalia was a fierce defender of traditional marriage and continually resisted his colleagues' various attempts to redefine marriage at the behest of gay activists. He did so not because the preferences of judges like Anthony Kennedy were opposite his own, but because it is incongruous to believe that the US Constitution somehow includes a fundamental constitutional right to gay 'marriage.' Scalia believed that marriage rests with the democratic process and not with judges imposing a particular view of the institution that aligns with the opinion of elite society, from which judges are selected.

Scalia used his immense intellect to craft his opinions in ways that would gather attention and resonate with the legal community, and the American people. And he issued clear and unmistakable warnings of the direction in which the liberal wing of the Court was determined to move the nation when it comes to sexual morality and marriage.

For example, when the majority of his colleagues, led by Justice Anthony Kennedy, ruled in Romer v Evans that the voters of Colorado could not prohibit the granting of special rights to homosexuals, Scalia took them to task for the abject lack of constitutional basis for the ruling. He reminded the Court that just ten years earlier in Bowers v. Hardwick they had ruled that there was no fundamental constitutional right for someone to engage in homosexual acts and that the constitution had not changed during the intervening decade. Despite this, the liberal Kennedy wing decreed that it is unconstitutional for voters to prevent special rights to be granted to gays and lesbians because doing so supposedly amounted to animus and discrimination, and that expressing moral disapproval of homosexual conduct was akin to racial and religious bigotry. To this, Justice Scalia chastised the majority for its utter lack of judicial basis: "The Court today… employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values…But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes."

The constitutional battle over marriage and traditional American values came more clearly into focus in the case of Lawrence v Kansas, which revisited whether states could penalize people for engaging in homosexual conduct such as sodomy (which was at issue in the Bowers case years before). Once again, Justice Anthony Kennedy led the majority to strike down state laws penalizing sodomy, and once again Justice Scalia dissented — not because he personally favored penalties for homosexual conduct but because the US Constitution simply does not contain a fundamental right to homosexuality. Scalia skewered Kennedy and the majority for basing their decision not on the constitution but on the observation that the Bowers ruling had been repeatedly publicly criticized. If the existence of ongoing public criticism was the basis for constitutional law, Scalia pointed out that Roe v Wade should be overturned on the same basis.

In his dissent in Lawrence, Justice Scalia presciently warned that the ruling would inevitably lead to gay marriage and the striking down of laws against polygamy, bigamy, adult incest and bestiality because the Court was effectively banning states from considering the morality of sexual practices as an intrusion into the personal and private life of the individual. "[The Lawrence] opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Keep in mind that Justice Scalia's warning about the undermining of the constitutional basis for preserving marriage was issued in 2003 at a time when not a single state in the US allowed gay 'marriage.' A year later, just as Scalia predicted would happen, Massachusetts became the first and the legal battle was on.

Obviously, Justice Scalia's warnings concerning marriage have come to pass. When Anthony Kennedy led another 5-4 majority to dismantle the federal Defense of Marriage Act in the Windsor case, Scalia again took the majority to task for ignoring the constitution. He went on to warn us that the next step would be to impose gay 'marriage' on the entire nation. The only thing that would prevent it, he promised, was the Court's own sense of what they could get away with. Indeed, last June another bare majority of the Court led by Anthony Kennedy decided they could get away with it and ruled to impose same-sex 'marriage' on the nation.

With Justice Scalia's sudden passing, selecting his replacement now becomes one of the central issues in the 2016 presidential election. Thank God that we were successful in impacting the 2014 elections because we were able to raise the resources needed to elect conservatives like Tom Cotton in Arkansas and Thom Tillis in North Carolina. Thanks to you, a conservative US Senate means we're now in a position to block the confirmation of any appointee that Barack Obama might put forward.

You can absolutely count on President Obama to do everything in his power to put a liberal judicial activist on the Court so that he can push the nation even further to the left. If that happens, it will be exceedingly difficult to revisit the marriage ruling, or to protect the right of states to limit abortion, or to fight against polygamy and adult incest, or to protect religious liberty. The appointment of the next Supreme Court justice has massive implications for virtually every issue that occupies current public debate — the right to bear arms, protecting our borders, the fight against terrorism, economic liberty, privacy and security, etc.

That is why we absolutely MUST elect a proven conservative champion as president who we can trust without question to appoint a constitutionalist like the late Justice Scalia. Sen. Ted Cruz is that candidate. A constitutional scholar and former US Supreme Court clerk and Solicitor General of Texas, Sen. Cruz has personally argued numerous cases before the US Supreme Court.

No other candidate running for president has Sen. Cruz' depth of knowledge, understanding or experience in the judicial realm. No other candidate has the record that can assure us without question that he will appoint someone like Antonin Scalia and not someone like Anthony Kennedy.

In fact, some of those running, like Donald Trump, have a record that suggests they could be as bad as Obama when it comes to Supreme Court appointments. Trump has even pointed to his sister as someone who would make a great Supreme Court justice. Trump's sister, a federal judge, has ruled in favor of partial birth abortion — the gruesome killing of a child in the process of being born. I can't imagine the damage a Trump appointee would do to the nation.

I am terribly saddened by the death of Justice Antonin Scalia, but his passing puts into exceedingly sharp focus the incredible importance of this presidential election. This Supreme Court vacancy is very likely not going to be the only one that the next president will be able to fill. Thus, the outcome of the presidential election this year will impact the nation not just for the four year term of the president, but for generations to come.

Please pray for the Scalia family, and pray for the nation that citizens will awaken to see the importance of the race before us, and elect a proven champion as president. The future of America depends on it.


Brian S Brown

PS — The stakes in the election are now so much higher than they were before, and so is the importance of NOM being able to aggressively influence the public debate concerning marriage and religious liberty. Please make a generous financial contribution so that we may be effective during this critical time. Thank you.

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