Posted on 04/07/2015 4:22:03 PM PDT by Kaslin
If you get your news primarily from entertainment shows or social media, you might think that same-sex marriage has already been recognized as a constitutional right. In fact, the Supreme Court held just the opposite in 1972 and has since refused several opportunities to revisit that ruling.
A new hearing will be held on April 28, and defenders of the traditional definition of marriage are just now having their say. On Friday, dozens of briefs were filed in the Supreme Court, urging the Court not to take the step that liberals have declared to be inevitable.
The first of those pro-marriage briefs to reach my attention was filed on behalf of 57 Republican members of the U.S. House and Senate. It was written by a brilliant young lawyer, D. John Sauer, who is a grandson of my friend Dr. Dean Sauer, an influential conservative activist in the 1950s and '60s.
The brief outlines seven principles of constitutional adjudication declared by the Supreme Court in the last 25 years, and it shows how each of those principles counsels against a sweeping decision redefining marriage for all 50 states. Many of those principles have been supported by Justice Anthony Kennedy, whom everyone expects to provide the deciding vote for whatever the Supreme Court decides.
The first is the principle of federalism, which Justice Kennedy has said "was the unique contribution of the Framers to political science and political theory." It was "the insight of the Framers," Kennedy continued, "that freedom was enhanced by the creation of two governments, not one."
For that reason, the Court has been reluctant to project its authority into areas of traditional state concern, especially family law, "an area that has long been regarded as a virtually exclusive province of the States. ... The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations."
Second is the idea that the states are "laboratories of democracy" for devising solutions to divisive domestic issues, especially those where, as Justice Kennedy said, "the best solution is far from clear."
The "laboratories of democracy" slogan was coined 100 years ago by the famous Justice Louis Brandeis, and it was recently reaffirmed. Just last year, the Supreme Court used that phrase when it upheld Michigan's voter-passed initiative banning racial preferences in the name of affirmative action.
Third, the Court said it should be cautious when asked to rule in an "unchartered area" that lacks "guideposts for responsible decision-making." If marriage no longer requires both a husband and a wife to be legally valid, there's no clear boundary that separates marital status from other domestic relationships that are not entitled to public support.
Fourth, the Court should be reluctant to redefine marriage in the absence of a close nexus between the right asserted (same-sex marriage) and the constitutional provision (equal protection of the laws). The equal protection clause has never been applied to marriage, which is why the Supreme Court in 1972 said there is no "substantial" basis of such a claim.
The pro-gay marriage advocates like to cite the famous "Loving" decision that overturned a ban on interracial marriage, but Loving was actually not about marriage. It was a decision against racial discrimination, which the Court said was the "central meaning" and "central purpose" of the Fourteenth Amendment.
Fifth, the Court said it should respect the "earnest and profound debate" in which the states are engaged on the issue. It should not short-circuit the democratic process with a ruling that pretends to settle the debate once and for all.
Sixth, the Supreme Court generally prefers incremental change to constitutional rights, rather than sweeping and dramatic ones. In support of this principle, the brief quotes the "notorious RBG" herself, Justice Ruth Bader Ginsburg, who famously criticized the abortion decision (Roe v. Wade) because "the political process was moving in the early 1970s, not quickly enough for advocates of quick, complete change, but ... heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."
Seventh, the Court should weigh the relative "novelty" of the asserted claim of a new constitutional right against the "novelty" of government restrictions on that right. On this point, there's no question that the "novelty" award goes to the idea of same-sex marriage, which nobody ever thought was even possible until a couple of years ago.
The pro-gay media have tried to make gay marriage seem normal, saying it's now "allowed in 37 states." In fact, same-sex marriage was enacted by only 11 state legislatures, and only three of those laws were ratified by popular vote. In the other states, same-sex marriage was imposed by unelected judges -- in some cases, by only a single judge whose decision was never upheld by a higher court.
The foregoing seven principles are not the most important reasons for upholding traditional marriage, but they ought to persuade the judges who hold the power to decide. If they don't, the other branches of government should use their constitutional powers to check and balance a bad decision.
What Will the Court Do to Marriage?
Sodomize it?...
Bump
Curious; Can the Congress and the Executive Branch ‘check’ a Supreme Court decision without resorting to the Amendment process?
The article supposes that SCOTUS uses some legal principle to arrive at a conclusion, but it does the opposite. Conclusion comes first, then seeking out some legal principle that supposedly upholds that outcome.
It depends on the reason the court uses to justify its decision. If the court in interpreting a statute, Congress can modify the statute. But when the court says what the constitution means, they are basically the last word, and by golly, Congress sure does like it that way, because it allows Congress to blame the court, and then do nothing.
A government not even 240 years old should not be allowed to arbitrarily redefine a religious institution that has existed for thousands of years.
Gotta love Mrs. Schlafly.
She and Mr. Sowell are truly American treasures.,
They sure are
“A government not even 240 years old should not be allowed to arbitrarily redefine a religious institution that has existed for thousands of years.”
But they will. It’s Bible prophecy.
I love Phyllis Schlafly and have unlimited admiration for her courageous fight against the evil of liberalism. Sadly, no matter how compelling the legal arguments to retain the definition of genuine marriage, the intellectual dishonesty of the liberals on this court, including the appalling Anthony Kennedy (thanks for nothing, Ted Kennedy) will result in a decision that the homofascists are more deserving of “Constitutional protection” than those exercising their right of religious freedom under the 1st amendment.
Scalia warned everyone that such would be the case.
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise 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;(...)
The impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses is precisely why Bowers rejected the rational-basis challenge. ‘The law,’ it said, ‘is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.’ “
~Justice Scalia, Dissenting in Lawrence v. Texas
They don’t have to, CONGRESS can Order the supreme Court to NOT hear the case, or any other case or issue they so choose.
Article 3, section 2
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Genesis 1
English Standard Version (ESV)
26 Then God said, “Let us make man[h] in our image, after our likeness. And let them have dominion over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing that creeps on the earth.”
27 So God created man in his own image,
in the image of God he created him;
male and female he created them.
28 And God blessed them. And God said to them, “Be fruitful and multiply and fill the earth and subdue it, and have dominion over the fish of the sea and over the birds of the heavens and over every living thing that moves on the earth.” 29 And God said, “Behold, I have given you every plant yielding seed that is on the face of all the earth, and every tree with seed in its fruit. You shall have them for food. 30 And to every beast of the earth and to every bird of the heavens and to everything that creeps on the earth, everything that has the breath of life, I have given every green plant for food.” And it was so. 31 And God saw everything that he had made, and behold, it was very good. And there was evening and there was morning, the sixth day.
A president and a senate working in tandem could appoint some more Justices to the Supreme Court to get a decision that they were amenable to, such as FDR “Court Packing” attempt in the 1930s.
A President could have an Andrew Jackson moment and simply ignore the court, as in “John Marshall made his decision, now let him enforce it.”
A Congress willing to strong-arm the judicial branch could simply impeach and remove the members of the Supreme Court and a President would have to appoint replacements with their approval.
All these tend to be destructive of an independent judiciary, although the behavior of the judicial branch in this and other matters tends to point out that such a thing is a most likely a myth anyway.
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