Posted on 06/30/2015 7:56:19 AM PDT by xzins
A complete commentary on the same sex marriage case would take far more than a single short article. Accordingly, I offer only some discrete thoughts:
* A big expansion of federal power. Many libertarians believe the courts should use the Fourteenth Amendment to protect rights unenumerated in the Constitution, and some urged the Court to declare that civil marriage was among those rights. They need to be careful what they ask for. What they have just “won” is a major expansion of federal power.
The case removes limitations on Substantive Due Process, the principal way judges create “rights” unmentioned by the Constitution. Removal of those limits augments the authority of the federal courts. But it also widens the power of Congress. Whenever the courts create a new right under the Fourteenth Amendment, Section 5 of that amendment operates to give Congress “power to enforce [it], by appropriate legislation.” As a result of this case, Congress now enjoys substantial authority over civil marriage, a realm previously considered to be almost wholly reserved to the states.
* The Court’s principal flaw in logic. This is my summary of the essence of the holding:
We recognize marriage as a fundamental constitutional right because it is so important to personal fulfillment, so long-honored, and creates such good social results. Hence, we now require states to loosen the prerequisites for marriage.
The flaw in this assertion is assuming that the “marriage” that has been such as successful institution is the same thing as “marriage” under the Court’s re-definition. An institution whose essence is a relationship between people of the opposite sex is not the same thing as an institution without that characteristic. We do not know what the long-term results of the latter might be.
* The radical result. I could be persuaded to the contrary, but the case has me thinking it may be the most radical in Supreme Court history. An obvious reason is the result: The Court constitutionalized a pop-definition that didn’t exist 20 years ago. Speaking jurisprudentially (although not morally), this was a much greater departure than such widely-criticized Substantive Due Process cases as Dred Scott, Lochner v. New York, or Roe v. Wade.
* The radical methodology. (1) The Court did not, as is customary, rest its holding on the most narrow grounds supporting the result, but on the widest possible grounds—i.e., Substantive Due Process rather than Equal Protection or Full Faith and Credit. (2) The Court announced explicitly that even the prior flaccid limits on Substantive Due Process no longer applied. (3) The Court’s own precedents required that after a judge finds a right “legitimate” or “important” or (as here) “fundamental,” the judge next must consider the weight of the government’s justification for limiting the right. But the Court didn’t even purport to do the latter. In other words, the Court granted same sex marriage a status above enumerated fundamental rights (such as free speech) and other unenumerated rights (such as privacy or abortion).
* Yet, constitutionally speaking, civil marriage is not a “right” at all, much less a fundamental one. As Justice Thomas pointed out in dissent, civil marriage is what the Founders called a “privilege”—a government-created entitlement. Same sex couples have the right to cohabit without being molested by the state, to contract with each other, and to take religious vows. Neither they nor anyone else has the “right” to the government-created entitlement called civil marriage.
Civil marriage does not create the right to cohabit. It is principally a vehicle for distribution of certain special benefits. The first-named plaintiff could have married his long-term partner any time after Massachusetts recognized same-sex marriage in 2003, but he did so only after his partner was critically ill and inheritance became an issue. The Court’s description of the facts strongly suggests that as to that plaintiff at least, the case was as much about entitlement as about love.
* Are you religious? Be afraid. The Court’s opinion shows the justices know their holding has grave implications for the free exercise of religion, but the paragraph in the opinion that purports to reassure does not. Pointedly, it mentions only the freedom to dissent and debate on matters of religion and morality, not the freedom to act on one views. In the wake of this decision, family businesses, non-profits and perhaps even religious congregations will be sued under state and federal civil rights laws. This opinion implies the Court will do nothing to relieve them.
* Hypocrisy. Some of same voices that urged “restraint” in considering Obamacare because it was (just barely) adopted pursuant to the democratic process, urged the Court to sweep away scores of democratically-adopted laws that reflect long popular understanding. Consider the disparate approaches by editors of Time Magazine, for example—for restraint in the Obamacare case, but against restraint in this one.
* Constitutional corruption. As Justice Alito pointed out in dissent, this holding exemplifies how corrupted constitutional interpretation has become. Justice Alito did not mention, but probably would agree, that the nation’s law schools are largely to blame. Lawmakers and alumni: Take note next time universities with law schools ask for money.
* “Same ole same ole” won’t cure the problem. Justice Alito also noted the futility of past efforts to address this corruption. That’s one reason we need a convention to propose amendments under Article V of the Constitution. Those who have been arguing that traditional methods of response are sufficient have been thumpingly proven wrong.
* Are you religious? Be afraid. The Court’s opinion shows the justices know their holding has grave implications for the free exercise of religion, but the paragraph in the opinion that purports to reassure does not. Pointedly, it mentions only the freedom to dissent and debate on matters of religion and morality, not the freedom to act on one views. In the wake of this decision, family businesses, non-profits and perhaps even religious congregations will be sued under state and federal civil rights laws. This opinion implies the Court will do nothing to relieve them.
War on polite American society; war on families declared by an out of control and evil Supreme Court.
Ping
This court decision is troubling on other levels too.
1. The states have always handled marriage and family law. Now there is a strong federal component with the Supreme Court having imposed their view of what marriage should be.
2. The Supreme Court, and other courts before this time, took it upon themselves to change the definition of a legal term, as well as the dictionary definition of a word. In order to achieve their goal, they had to change the definition of marriage.
3. The fact that citizens of 32 states, separately from each other, decided to go through the process to amend their constitutions to define marriage meant nothing to the five liberals on the Court.
4. The fact that a handful of states had changed the definition of marriage through the political legislative process was noted by the court, but the fact that most states had reached the opposite conclusion of how marriage should be defined was meaningless to the liberals on the court.
5. Only two years ago, the Supreme Court ruled that since some states allowed homosexual marriage, the federal government must likewise do so. Under principles of federalism, the court decided that the states were the ultimate arbiters of how marriage should be defined. But with this ruling, they completely reversed their own reasoning and did not care how states defined marriage. Instead deciding to impose their own definition of marriage.
The Obamacare one was the most radical.
They destroyed the meaning of English and the constitution for one simple reason: Obamacare is too big to fail (in their eyes).
The same sex marriage issue is a close second, though, as is the fair housing one. Craziest court EVER and they have utterly destroyed the US. It just takes a while for the poison to work.
Your points are right on. In essence what this ruling by this court did was to place possibly the final nail in the coffin of federalism of the central government and replace it with a unitarian central government. State boundaries are now just lines on a map.
Arguing about the leaps behind the Obamacare and gay "marriage" rulings is like arguing about which of the 20 largest individual blue whales is the biggest without some means of direct measurement. A whole lot of whoppers went into reading "exchange established by the state" to mean "any exchange, whether or not established by the state". A whole lot of whoppers went into redefining "marriage" to carry a definition that it never held in the history of the world from 5000 BC to 2000 AD, finding that right in a Constitution that never mentions marriage, and stretching FedGov powers so far beyond the Enumerated Powers to cover something that has been an exclusively state responsibility until this week.
Still, my personal vote for most radical act of tyranny is the implication that an invented right never mentioned in the Constitution can take precedence over an enumerated, God-given right. Narrowing free exercise to mere dissent and debate is a shockingly evil and lawless infringement on our God-given rights. If I'm a juror in such a case, nothing a victim of the gay mafia does in response to a demand for wedding services will lead to a guilty vote. The free exercise of religion is as absolute as the right to keep and bear arms. Any thug who infringes on the first of those rights fully deserves an encounter with the second of those rights, or any lesser response.
I’m a lot more worried about its ruling for Obamacare. That ruling affects far more people.
Oh I don’t know.
Dred Scott, Roe V. Wade, NFIB V. Sebelius (Obamacare 2012), all pretty radical and unsupported by the Constitution. Various decisions upholding FDR’s marxist programs were bad as well.
Roe led to you know, deaths, so.....
* The radical result. I could be persuaded to the contrary, but the case has me thinking it may be the most radical in Supreme Court history. An obvious reason is the result: The Court constitutionalized a pop-definition that didn’t exist 20 years ago. Speaking jurisprudentially (although not morally), this was a much greater departure than such widely-criticized Substantive Due Process cases as Dred Scott, Lochner v. New York, or Roe v. Wade.
FWIW, Dr. Natelson is a renowned relatively conservative Constitutional Scholar/Lawyer
Well if we’re going for “biggest ball of made up bulls***”, perhaps it is the most egregious in that regard.
That’s what it sounds like he’s saying: Grand prize for “Pulled Out of Not Just Thin Air, but Out of a Vacuum”
Obamacare is too big to fail (in their eyes).
0bama is too big to fail in their eyes.
Destroy the meaning of English words?
Whatever is necessary to advance their goals.
Destroy the Constitution?
Christianity?
Traditions that have been tested and work?
They’ve been at this game for a long long time.
They’ve apparently found a time when the populace is or can be manipulated enough to make these gains. A populace of idiots that can’t think beyond their next sexual hook-up.
We are truly lost.
Bump to that - really good article. Super for the layman, and adds some angles that amplify just how LAWLESS the decision is.
I agree with the author, this is the worst decision SCOTUS has ever blasted out of it's whimsy hole.
Kind of hard to beat Scott v. Sanford or Roe v. Wade (BTW, Dred Scott was the first use of “substantive due process” by SCOTUS, and Roe was the discredited theory’s widest application, at least prior to Obergefell) in the amount of evil that led to it or that was caused by it, but I think that the most egregiously ridiculous SCOTUS case ever was Eisenstadt. Prior to Griswold, many states prohibited the use of contraception by anyone, but in Griswold the Court struck down Connecticut’s ban *as applied to married couples* because marriage was such a slecial institution and marital privacy was the most important thing in the wirld, etc. So some states that previously had banned birth control now limited their ban to unmarried people, who would not have that magical “marital privacy” interest that had forced the Warren Court to strike down CT’s law. So an unmarried couple sued, and SCOTUS declared that law unconstitutional as a denial of EQUAL PROTECTION for unmarried couples! The state that had been for ed by SCOTUS to permit married couples to use contraception now was deemed to be discriminating in favor of married couples and against unmarried couples when it limited its contraceptive ban to unmarried couples. You can’t make this shi’ite up. Look up the case, it’s called Eisenstadt, but I’m too lazy to look up its full name.
the million dollar question is:
will the conservative churches now actively oppose judicial activism as an evil? Oppose it in deed, not just word.
Anyone who is serious about the Gospel cannot be content to be ruled by Elena Kagan. I wonder if the churches will actually learn to fight back. I doubt it. They are likely to shrink in retreat. at least on the east coast.
The new Archbishop here in Chi is a pinko commie just like his UnHoliness.
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