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BY Joseph A. D'Agostino
WASHINGTON — The last week of the recent U.S. Supreme Court term saw rulings that both pleased and aggravated family advocates.
The court ruled on:
Sodomy laws, that homosexual acts done in private are constitutionally protected;
Library pornography access, that the federal government can require blocking software in many libraries’ computers; ESex-abuse moratoriums, that states may not extend statutes of limitation to prosecute sexual abuse.
Sodomy Laws. On June 26, the high court in Lawrence v. Texas declared Texas’ law against sodomy unconstitutional. Its 6-3 decision stood against decades of American, English, Christian and Jewish legal tradition. Only Chief Justice William Rehnquist and Catholic justices Antonin Scalia and Clarence Thomas dissented from the ruling.
Two homosexuals in Houston brought the case. They were arrested after police, responding to what turned out to be a false report of a weapons disturbance, discovered them engaging in sexual activity.
Their victory in court invalidates such laws in a dozen other states and raises further fears about legalization of same-sex “marriage,” particularly since it came a week after Canada announced plans to legalize such marriages. A Massachusetts court is expected to decide a same-sex marriage case this summer.
As recently as 17 years ago, the court upheld an anti-sodomy law in Bowers v. Hardwick.
Scalia, in his dissenting opinion in Lawrence, said state laws against things such as bigamy, adult incest, prostitution, adultery and obscenity are “sustainable only in light of Bowers’ validation of laws based on moral choices.”
“Every single one of these laws is called into question by today's decision,” Scalia wrote.
In other words, said Bob Knight, director of the Culture and Family Institute, a Concerned Women for America affiliate, “Sen. Santorum was right.”
Homosexual-rights activists and Democratic politicians attacked Catholic Sen. Rick Santorum, RPa., earlier this year after he predicted: “If the Supreme Court says that you have the right to have consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”
Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops, downplayed fears that the ruling would open a path for legalization of homosexual marriage, saying the case “was decided on the narrowest of grounds.
“Justice Kennedy took pains to insulate this case from broader conclusions,” he said. “He points to laws against prostitution and rape to show that not every sexual act between adults is outside the reach of legislatures.”
Senate Majority Leader William Frist, R.-Tenn., said June 29 that the ruling threatens to make the American home a place where criminality is condoned. He said he supports a proposed constitutional amendment to ban homosexual marriage.
A ruling three days earlier seemed to be a victory for those who want to protect children from pornography when they use the Internet in public libraries.
In United States v. American Library Association, the court ruled June 23 that the Children's Internet Protection Act was constitutional. The act makes certain federal funds for schools and public libraries contingent on the installation of filtering software designed to prevent children from viewing sexually explicit images on the Internet. Under the federal E-rate program, which subsidizes Internet access in public schools and libraries, those libraries that chose to participate received $58.5 million in fiscal year 2002.
The American Library Association and other groups sued the federal government, claiming the restrictions on the federal funds violated the First Amendment. But, wrote Rehnquist for the court's 6-3 majority in the case, “We have held in two analogous contexts that the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.”
“I'm certainly encouraged,” said Robert Peters of Morality in Media in response to the decision. The courts had been applying stricter and stricter tests to such issues, he said. “They came up with a strict test to apply to adult political speech,” he said. “These liberals keep expanding what these tests are applied to.”
Some public library systems, such as San Francisco's, have decided not to take the federal funds in order to avoid installing the software.
Deborah Caldwell-Stone, deputy director of the office for intellectual freedom at the American Library Association, said the association has not decided whether to mount another legal challenge to the Children's Internet Protection Act on different legal grounds.
“Clearly Justice Kennedy invited a second lawsuit ... if there is a burden on adult access,” she said.
Rehnquist noted: “With respect to adults, [the Children's Internet Protection Act] also expressly authorizes library officials to ‘disable’ a filter altogether ‘to enable access for bona fide research or other lawful purposes.’”
Presentation of the Blessed Virgin Mary Sister Dale McDonald, director of public policy and educational resources at the National Catholic Education Association, said the ruling does not affect schools since the lawsuit was about only libraries. Schools have already had to comply with the Children's Internet Protection Act.
Michael James, associate executive director of the Association of Catholic Colleges and Universities, said the ruling does not apply to higher education but that “virtually all of our Catholic colleges and universities ... have policies that say you cannot pull up pornographic or offensive materials. It applies to anyone who uses university technology.”
Sex-abuse moratoriums became an issue for Catholics when California extended its statutes of limitations for child-molestation cases in 1994. It brought a flood of lawsuits involving priests because, say critics, charges that could be neither proven nor disproven could be brought and the Church would feel obliged to pay.
In a 5-4 decision, the Supreme Court ruled June 26 that states could not revise already-expired statutes of limitations. Lawyers said the ruling would nullify most pending clergy sex abuse prosecutions in the state.
Stogner v. California stemmed from a challenge to a California law by a 72-year-old man accused of molesting his two daughters when they were children.
William Donohue, president of the Catholic League for Religious and Civil Rights, hailed the ruling.
“Innocent until proven guilty carries with it certain predicates, one of which is that claims made decades after an alleged offense can never be settled in a satisfactory manner,” he said in a statement. “Thus, the court must err on the side of the accused. What the high court did today was to restore the clock to the criminal justice system.”
“The implications for the Catholic Church, especially in California, are grave,” Donohue continued. “This now means the Church will properly be safeguarded from steeple-chasing lawyers and their Johnny-come-lately clients. While some of the clients may have indeed been victimized by a priest, others are obviously playing the’ repressed memory’ game.”
But those who support deadline changes say child molesters aren't usually exposed until after the statutes of limitations have expired.
In this case, the conservatives on the court — Rehnquist, Scalia and Thomas — joined Kennedy in his dissenting opinion, which said California should be allowed to punish “serious sex offenses” against children.