Posted on 03/29/2013 9:53:03 AM PDT by Kaslin
I would like to think that Supreme Court justices are smarter than I am.
At one level, they surely are. Their years of devotion to the practice and analysis of law involves countless pages of book-learning I will never undertake. Their brains must fairly bulge with minutiae I cannot grasp.
But there is a difference between intelligence and wisdom. There are high school dropouts who have deep wells of astuteness about how to think, act and live in an enlightened way. And there are Ph.D.’s I would not let into my house.
In one stunning moment Tuesday from the Supreme Court bench, we saw a very smart man say something of such profound stupidity that it should shake our very faith in some of the people who wear our loftiest judicial robes.
Justice Anthony Kennedy, who apparently has the power to shape a nation depending on which side of the bed he gets up on each day, was quizzing Charles Cooper on his defense of California’s Proposition 8, which reflects the voters’ wish for unique legal recognition of opposite-sex marriage.
“There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
Actually, Mister Justice Kennedy, that supposition has no place whatsoever in a consideration of what the Constitution says and what it does not. For a randomly-chosen person on the street not to know this is understandable-- and the way things seem to be going lately, probable.
For a sitting Supreme Court Justice to invoke such a thing is shocking.
If we are going to start projecting the wishes of children onto our evaluations of various laws, divorce will become illegal immediately. And I would presume that there are over a million unborn babies who would prefer not to be ripped from the womb each year. I presume Justice Kennedy’s ears are not cocked as attentively in their direction.
It is up to grownups to interpret law based on what the Constitution requires. That is a complex enough task without wringing our hands over emotional side-shows.
There are places for arguing our likes and dislikes of gay marriage-- the states, where in the California example, a whopping voter turnout nearing 80 percent yielded a 52-48 victory for those seeking to legally recognize only the marriages between men and women. In that state, for the time being, that settles it.
As time passes, other states may join the ranks of those granting legal equivalency to homosexual unions. They are constitutionally permitted to do so. And that’s where all of these battles should be.
Amid all the finger-wagging warning conservatives that they are on “the wrong side of history,” we should be quick to remind that advocating liberty never offends history.
If a state wishes to engage in the radical redefinition of the central relationship in human history, it may do so. But proponents who win in one state do not have the right to dictate what happens elsewhere.
I am hopeful that the Supreme Court will leave this to the states, not because most justices share my state’s rights passion, but because they ultimately do not want to wear a Roe v. Wade-style stain, cementing the reputation of another court relying not on the law but on the nebulous concept of The Way They Think Things Ought To Be.
Even liberals, who tend to favor “marriage equality,” have a responsibility to respect the will of those who disagree.
Something does not become a constitutional right simply when people grow passionate about it. I happen to think every restaurant should be able to allow smoking if it wishes, and every New York street vendor ought to be able to sell a barrel-sized Coke.
But cities may indeed constrain those matters with standards that are the will of the voters. (Remember that the Bloomberg soda ban did not fail constitutionally, it was nuked for incoherency).
There is no doubt that gay marriage proponents have successfully identified their cause as the moral cousin of the battles to end slavery and grant women’s suffrage.
But civil rights and women’s rights address areas where gender and race differences are irrelevant or none of the public’s business. The sex of a voter or the race of a bus passenger are of no relative consequence, so equality under law is called for.
Men and women have equal status in many ways, but they are not the same type of human being. We have males and females because that dichotomy is central to the furtherance of the species. Throughout human history, men and women have interacted in ways that speak to the very different properties, characteristics and attributes they bring to the human table. Those differences are what make men and women unique, distinct and magnificent in their own ways.
The “marriage equality” movement that says it exists only to allow loving couples to do what they wish to do, brings the risk of eroding various gender differences, poisoning many other areas of law. If it is the same for me to marry a man as to marry a woman, how can we maintain any law that protects women uniquely, or restricts the draft to men, or keeps men out of ladies’ rooms? Some examples run to the potentially absurd, but I would suggest our nation’s founders find it mightily absurd that the nation they created is actually debating whether the nation should compel acceptance of a revision of one of life’s fundamental precepts.
While there are factions ready to condemn any Republican failing to sing the glories of same-sex marriage, I believe there remain plenty of voters willing to accept national candidates who say the states should decide this matter for themselves.
The Bible guides our morality. It is properly used to bolster an argument against “marriage equality” in any state considering it. There are societal and historical reasons alongside that make this a wholly different thing than opposition to interracial marriage, which was an incursion into people’s private business.
The Constitution guides our laws, which provide a legislative marketplace for those on both sides of the gay marriage issue.
Gays may marry any time anywhere and live as wedded couples for the rest of their lives in any state. The only issue is whether those unions will be viewed as the legal equal of heterosexual unions.
States wishing to take that giant step are free to legislate accordingly. Those unwilling may maintain unique recognition for opposite-sex couples. In both cases, the winners and losers have the responsibility to recognize that this is what liberty looks and feels like.
A judicial cram-down usurping voter wishes on this matter looks and feels like something wholly different. I hope Justice Kennedy and at least four of his colleagues can achieve clarity on this, fighting off the temptation to rule according to what seems kind to one side or popular in the polls.
Or they can rule that runaway slaves must be captured and returned to their masters, as they did before, and that wouldn't be right either.
And they can rule that homosexuals can "marry," but they the can't make that unnatural union a natural marriage any more than they can make a horse the same as a cow by legal fiat.
God has already decided it.
Romans 1:24-32
The question is whether the Supreme Court or the states should usurp the Authority of God?
My guess is that they will all play God and thumb their noses at God’s authority.
That is usually very unwise course for a nation.
Very well said
It’s not a matter of numbers. It’s a matter of jurisdiction. Since marriage is not a constitutional issue, SCOTUS has no jurisdiction to rule on the matter. It should be remanded back to the states.
I’ve been tuning up that idea since I heard the throwaway phrase “natural marriage” on a local talk show program driving across SC 2 days ago.
The assumption that the Supreme Court Justices are smarter than you or any average person for that matter in not valid. They are nothing more than political hacks. All three branches of government are not on our side. As of this writing, I have withdrawn my consent.
Please see #2.
I’ve thinking that “natural marriage” is a winning meme on several overt and subtle levels.
Yes, Kennedy asked the question, but justices often pose “devil’s advocate” questions like that to push details of the argument into the open. There are plenty of reasons to be concerned about the outcome, but that alone isn’t one of them.
There is no such thing as homosexual marriage, regardless of what fifty states or a court says.
I’m also kicking this around.
The entire Constitution of the United States is 4,436 words long, not counting the Bill of Rights. Of those 4,436 words, 2,268 in Article 1 (Note, it comes first) deal with the powers and duties of the Legislature. In Article 2, 1,025 words deal with the powers and duties of the Executive. In Article 3, only 377 words pertain to the duties and powers of the Judiciary. Note, the Judiciary comes last in order.
This is all of Article 3:
# # #
Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
# # #
Now, this is the part that modern “judicial supremacists” ignore.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Let’s repeat that again.
“...with such Exceptions, and under such Regulations as the Congress shall make.”
So why are we constantly told that the SCOTUS has the last word???
"As we are 'one nation under God', so too is one man and one woman joined in marriage under God."
I agree with you. Let me add, though, drawing from Travis McGee's post, that the state can't turn something unnatural into something natural any more than the Fed can. As McGee says, you can declare a horse to be a cow, but you can't make it true, even if you are a state judge and not a federal one.
While that might work, the term "natural" remains secular. I think we need to engage a term that is entirely religious with a religious tradition. HOLY Matrimony is something that the church can recognize but that the secular courts would be prohibited from re-defining. Natural is subject to court interpretation and while for 10,000 years "natural" has never included homosexual acts, the courts are now recognizing those acts as perfectly normal and legitimate (despite the fact that those acts cause early death in almost all who engage in them).
Our government can prohibit 32 ounce drinks to save us from our own choices and then encourage us to engage in unnatural dangerous perverted sexual practices that kill.
James Madison would call the 10th a “parchment barrier,” a waste of words without a State appointed Senate.
“Holy Matrimony” has the important advantage of speaking specifically to mothering, and providing a unit within which “Holy” mothering can take place.
Moreover, “Holy Matrimony” can only be joined in a religious setting.
Finally, while the Metropolitan Community Gay Church could mimic and proclaim their own “Holy Matrimony”, first it would be nonsensical with the word mother as part of the term. Second, churches could recognize one another’s marriages or not, and a registry of acceptable matrimonials could be established.
Awesome cartoon! Thanks, Salvation.
Somebody said the other day that Kagan recused herself. Now I don’t know if it was for this case, or another one. If it was for this one and it goes 4-4 then it will likely go back to the states which it should.
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