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PRINTER'S NO. 2016
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE RESOLUTION
No.
420
Session of
2015
INTRODUCED BY KRIEGER, WARNER, RAPP, McGINNIS, METCALFE,
MILLARD, SCHEMEL, JOZWIAK, TALLMAN, WARD, KAUFFMAN, TOPPER,
BLOOM, GREINER, ZIMMERMAN, B. MILLER, SACCONE, FEE, GABLER
AND EVERETT, JULY 6, 2015
REFERRED TO COMMITTEE ON JUDICIARY, JULY 6, 2015
A RESOLUTION
Expressing grave concern over judicial activism and overreach
and calling for renewed public debate on the role of the
judiciary in a free and democratic society.
WHEREAS, The American system of democratic government was
established by the independent sovereign states, which upon
adoption of the Constitution of the United States retained all
sovereign powers not specifically delegated to the Federal
Government; and
WHEREAS, The Federal Government is comprised of three
separate, independent and coequal branches; and
WHEREAS, The legislative branch is charged with making all
laws necessary and proper for carrying into execution the
enumerated legislative powers of the Congress of the United
States, as well as all other powers vested by the Constitution
of the United States; and
WHEREAS, The executive branch is charged with ensuring that
the laws are faithfully executed; and
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WHEREAS, The judicial branch is charged with securing a
steady, upright and impartial administration of the law; and
WHEREAS, In The Federalist No. 78, Alexander Hamilton
correctly described the proper and essential attributes of the
judiciary when he said that it should "have neither force nor
will, but merely judgment"; and
WHEREAS, In The Federalist No. 78, Alexander Hamilton
advocated for a strong Supreme Court but premised his view on
the assumption that the Court would be bound by the plain
meaning of the language of the Constitution; and
WHEREAS, The Supreme Court of the United States has
increasingly departed from the express language of the
Constitution in order that it not be constrained in its endeavor
to create an ever-expanding world of implied constitutional
rights; and
WHEREAS, This often results in the corresponding finding of
new limitations on the rights that are fundamental to our
freedom and which are expressly set forth in the Constitution,
such as the free exercise of religion; and
WHEREAS, Departure from the plain language of the
Constitution results in the Court's encroachment on the province
of the legislature, which expresses the sovereign will of the
people through the political process and the reserved powers of
the states; and
WHEREAS, From the very beginning, the United States has been
exactly what its name suggests: a union of individual state
governments, each with its own laws and public policy; and
WHEREAS, When the founders laid out the system through which
these states would come together and function as a Federal
Government, they were careful to delineate which governmental
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powers were reserved for the Federal Government and which were
the sole province of the states; and
WHEREAS, Marriage law has historically been the province of
state law in the United States, and the Supreme Court of the
United States has historically recognized this, stating as early
as 1890 that "[t]he whole subject of the domestic relations of
husband and wife, parent and child, belongs to the laws of the
States and not to the laws of the United States"; and
WHEREAS, The people of many of the sovereign states,
including Pennsylvania, have expressed their will through the
representative political process: that marriage be limited to
one man and one woman; and
WHEREAS, In 1996, the General Assembly passed the Defense of
Marriage Act, which declared the strong and longstanding public
policy of the Commonwealth that marriage be between one man and
one woman and that marriage between persons of the same sex
which was entered into in another state or foreign jurisdiction
be void in this Commonwealth; and
WHEREAS, A Federal judge in 2014 overturned the Pennsylvania
law based on what he called the "bedrock constitutional
guarantees of due process and equal protection," which was on
its face a new application of the Constitution to justify the
creation of a new constitutional right; and
WHEREAS, In spite of the clear public response to the issue
as expressed by the people's elected representatives, same-sex
marriage is established in 25 states, including Pennsylvania, as
a result of judicial decisions rather than legislative
decisions; and
WHEREAS, In 2013, the Supreme Court of the United States
decided a challenge to the Federal Defense of Marriage Act that
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limited Federal benefits to marriages between members of the
opposite sex in a decision that emphasized the dominance of
state law defining marriage and required the Federal Government
to recognize marriages that were valid under state law; and
WHEREAS, The Supreme Court of the United States, in its 5-4
decision in Obergefell v. Hodges, departed from both legal
judgment and precedent and took the extraordinary step of
constitutionalizing marriage and ordering every state not only
to recognize marriages lawfully entered into in other states,
but also to license same-sex marriages in their own states; and
WHEREAS, In so holding, the Supreme Court has invalidated the
marriage laws of more than half the states, removed the issue
from the voters of the states where it has been since the
founding and "ordered the transformation of a social institution
that has formed the basis of human society for millennia"; and
WHEREAS, The majority opinion elevates will over judgment and
the personal views of the justices over the express language of
the Constitution, in the process doing great damage to
federalism and the doctrine of separation of powers; and
WHEREAS, Chief Justice Roberts, in his dissenting opinion,
said that those who founded our country "would not recognize the
majority's conception of the judicial role" and that "they
certainly would not have been satisfied by a system empowering
judges to override policy judgments so long as they do so after
"a quite extensive discussion"; and
WHEREAS, Justice Scalia, in his dissenting opinion, called
the action of the five person majority "a naked judicial claim
to legislative–-indeed-super--legislative power; a claim
fundamentally at odds with our system of government . . . A
system of government that makes the people subordinate to a
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committee of nine unelected lawyers does not deserve to be
called a democracy"; and
WHEREAS, Justice Alito, in his dissenting opinion, said:
"Today's decision will also have a fundamental effect on this
Court and its ability to uphold the rule of law. . . What it
evidences is the deep and perhaps irremediable corruption of our
legal culture's conception of constitutional interpretation";
and
WHEREAS, Justice Thomas, in his dissenting opinion, said that
in the Court's "haste to reach a desired result, the majority. .
. distorts the principles on which this Nation was founded. Its
decision will have inestimable consequences for our Constitution
and our society"; and
WHEREAS, President Abraham Lincoln recognized the grave
danger we now face, stating in his first inaugural address on
March 4, 1861, that "the candid citizen must confess that if the
policy of the Government upon vital questions affecting the
whole people is to be irrevocably fixed by decisions of the
Supreme Court,. . . the people will have ceased to be their own
rulers, having to that extent practically resigned their
Government into the hands of that eminent tribunal";
therefore be it
RESOLVED, That the House of Representatives believe that it
is essential for the well-being of the people of this
Commonwealth that we engage in an immediate public debate on the
proper role of the judiciary in the formulation of public policy
and the relationship of the judiciary to the will of the people
of this Commonwealth as expressed through the formulation of
laws by their representatives in the General Assembly.
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