Despite Supreme Court rulings to the contrary, Pryor has expressed the view that the Constitution should not apply to certain critical issues pertaining to the rights and freedoms of individual Americans, such as reproductive choice, the civil rights of gay men and lesbians, and religious liberty issues. Instead, Pryor has urged that these rights be determined by majority vote within each state, with the result that these rights could be diluted or eliminated in particular states.
The effective and devastating result of this ideology would be that the fundamental guarantees of the Constitution would not apply equally across the country. Pryor’s “majoritarian” views would create an America in which a person’s individual rights under the Constitution as the Supreme Court has articulated them would be fewer or greater depending on where that person lives.
Pryor has articulated these troubling views in speeches and in litigation. According to Pryor, America is in the midst of a “moral and spiritual crisis” caused, in part, by the “erosion of self-government,” for which he blames the Supreme Court:
The second and closely related crisis created by our Supreme Court involves the erosion of self-government. On January 22, 1973, seven members of that court swept aside the laws of the fifty states and created — out of thin air — a constitutional right to murder an unborn child. Last year, the Court swept aside the vote of a majority of the people of Colorado to end any preferences or special privileges for homosexuals in their state. Recently, lower federal courts struck down laws that prohibit assisted suicide.
The most important decisions of our time and our country are not being made by the people or their elected representatives. The Supreme Court has restructured our political community without the consent of our people . . .
Commencement Speech by Attorney General Bill Pryor to the 1997 McGill-Toolen Graduating Class (emphasis added),
Pryor has denominated as “political problems” certain aspects of individual rights guaranteed by the courts under the Constitution — rights that Pryor does not recognize — and has made it clear that he believes these matters should be determined not by the courts applying the Constitution but by “the people.” For example, in 1997 Pryor wrote that:
For more than 30 years, the liberal agenda has been pushed through the courts, without a vote of either the people or their representatives. The courts have imposed results on a wide range of issues, including racial quotas, school prayer, abortion, and homosexual rights.
Bill Pryor, “Litigators’ Smoke Screen,” The Wall Street Journal (Apr. 7, 1997) (emphasis added). Similarly, Pryor has called important decisions by the Supreme Court applying the Constitution to protect the equal rights of women (the Virginia Military Institute case) and of gay men and lesbians (Romer v. Evans) “antidemocratic.” Alabama Attorney General Bill Pryor, “Federalism and the Court: Do Not Uncork the Champagne Yet,” Remarks Before the National Federalist Society (Oct. 16, 1997) (hereafter “Do Not Uncork the Champagne Yet”).
In his speech before the Federalist Society, Pryor criticized the Court’s decision in Romer, 517 U.S. 620 (1996), for “overturn[ing] the vote of the people of Colorado who amended their state constitution to prohibit special privileges or rights for homosexuals.”24 As the Supreme Court explained, however, the vote on Amendment 2 had amended Colorado’s Constitution to make it virtually impossible for gay men and lesbians to secure legal protections against discrimination. The amendment also invalidated existing civil rights laws in the state prohibiting discrimination on the basis of sexual orientation. The Court held that Amendment 2 classified gay people “not to further a proper legislative end but to make them unequal to everyone else,” and ruled that the measure violated the Equal Protection Clause. 517 U.S. at 635. Pryor would nonetheless consign the rights of gay men and lesbians, and of other minorities, to majority votes.25
Under Pryor’s majoritarian philosophy, constitutional issues such as these would be determined by majority vote, with the result that these rights could be trampled or extinguished in particular states. For example, Pryor has specifically stated that “[i]n conservative states like Alabama, the regulation of abortion would be different from the regulation of abortion in more liberal states like California.” Improving the Image of the Legal Profession by Restoring the Rule of Law, Address by Bill Pryor, Attorney General of Alabama, Montgomery County Bar Association (May 3, 2000). In another speech, Pryor stated that “I submit that a government that does not allow its people, by a majority vote, to restrict the murder of innocent life or the assisted suicide of some of our most vulnerable citizens is not a rightly ordered political community . . .” McGill-Toolen Commencement Speech (emphasis added). Accord, Baccalaureate Speech to Independent Methodist School Graduating Class.
Pryor calls the courts’ application of the Constitution to such rights and liberties that he opposes the politicization of the legal system, and has made it clear he would like to put an end to it: “The greatest threat to the American principle of liberty in law is the politicization of our legal system. In the last few decades, our courts have created constitutional rights that do not appear in the Constitution. . . One of the tasks of the next century will be to restore lawmaking and policymaking to the democratic process, not the legal process.” Commencement Speech by Alabama Attorney General Bill Pryor for Spring Graduation at Northeast Louisiana University (May 15, 1999) (emphasis added).
One of Pryor’s most recent articulations of this ideology is set forth in the amicus curiae brief he has filed in the pending Supreme Court case of Lawrence v. Texas, in which the Court has been asked to decide the constitutionality of the Texas “Homosexual Conduct Law,” which criminalizes private consensual sex between same-sex partners. As discussed in more detail below in the section addressing Pryor’s record on civil rights, Pryor has specifically urged the Court to reject the argument that a statute that criminalizes so-called “sodomy” by gay men and lesbians but not by heterosexuals violates the Equal Protection Clause. But when it comes to the rights of gay men and lesbians, Pryor would go even further, and would take this issue out of the hands of the courts altogether. First, in defending the right of Texas and any other state to maintain anti-gay sodomy laws, Pryor has asserted that “[t]he fact that some States, like amici, have not gone along with the trend [toward decriminalizing same-sex “sodomy”] is simply an example of how this country’s federalist system works.”26
Moreover, consistent with his belief that the courts should not decide what he considers to be “political” questions, Pryor in fact does not even believe the Supreme Court should decide the Texas case, or other cases raising important issues of individual freedom. According to Pryor’s brief,
[a]ccepting petitioners’ invitation will take this Court perilously down the path toward permanently ensconcing itself as the final arbiter of the kulturkampf that is currently being waged over such sensitive and divisive social issues as abortion, sexual freedom, gender identity, the definition of the family, adoption of children, euthanasia, stem cell research, human cloning, and so forth. If Roe v. Wade and its progeny have taught one lesson, it is that judicial attempts to resolve social disputes of this nature do not have a calming and stabilizing effect on our society.
Pryor’s Lawrence Brief, at 22. Pryor argues that the state legislatures, not the courts, should decide issues such as those presented by this case:
The proper loci for change of the nature that petitioners and their amici advocate are the legislatures of the 50 States. . . [T]he States should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy.
Id. at 2-3 (emphasis added).
Pryor’s “majority rules” ideology is far out of the mainstream of legal thought and constitutional doctrine and would stand the Constitution on its head. The use of phrases like “social disputes” or “political problems,” two of Pryor’s catch phrases, cannot prevent the Constitution from being applied in cases implicating equal protection, liberty, due process, or other rights that the Constitution protects. Worse, Pryor would allow the fundamental rights of minorities or persons holding minority views in a particular community to be determined by majority vote, completely ignoring the fact that a primary function of the Bill of Rights and of the Fourteenth Amendment is to protect the rights of minorities even from political majorities. Indeed, as the Supreme Court has made clear, “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added).
The United States Court of Appeals for the Eleventh Circuit is often called on to decide cases involving the sorts of “social disputes” that Pryor believes should not be resolved by the courts. Pryor’s extremist “majority rules” ideology would pose a significant threat to the rights and interests of all Americans were he to be given a lifetime position on a federal appellate court.