Magazine article The New American

In the Clouds on Homosexual "Marriage": A Majority in the Supreme Court Gave Its Blessing to Nationwide Homosexual "Marriage"-In a Decision That Flouted Both the Law and Common Sense

Magazine article The New American

In the Clouds on Homosexual "Marriage": A Majority in the Supreme Court Gave Its Blessing to Nationwide Homosexual "Marriage"-In a Decision That Flouted Both the Law and Common Sense

Article excerpt

Has our nation traded the rule of law for the rule of lawyers? Critics would say so. And the recent Supreme Court rulings--most notably the 5-4 decision on Obergefell v. Hodges --could be their Exhibit A.

The late-June ruling, stating that samesex couples have a "right" to "marry" in all 50 states, went down precisely as critics had predicted--and feared. Justice Anthony Kennedy sided with the court's four most liberal judges--Elena Kagan, Sonya Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer--in the promotion of faux marriage; he also wrote the majority opinion. Justices Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito were on the opposing side, with each writing his own dissent.

Scalia was scathing in his denunciation of the majority opinion, calling the court a "threat to American democracy," characterizing its opinion as "lacking even a thin veneer of law," and writing that it "is couched in a style that is as pretentious as its content is egotistic." Chief Justice Roberts, known for his own activist lawyer-craft in the court's infamous ObamaCare decisions, wrote that the "court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us." Roberts perhaps felt particularly strongly about the June 26 Obergefell v. Hodges decision as he read a summary of his dissent from the bench, the first time he has done so during his almost decade-long tenure. And putting matters in no uncertain terms, he said to faux-marriage advocates, "By all means celebrate today's decision.... But do not celebrate the Constitution. It had nothing to do with it."

What the decision did have to do with, as per Roberts' allusion, were the five majority justices' feelings on what is "good" for society. While marriage laws are clearly a state matter, Justice Kennedy dismissed this reality with an appeal to emotion, saying that the "cautious" approach was insufficient because, for same-sex couples "and their children, the childhood years will pass all too soon." Of course, many argue that being raised by a homosexual couple isn't good for children, but as a constitutional matter, this is as irrelevant as Kennedy's judgment. The Constitution has no Good for Children Clause; such determinations are to be made by the people and expressed through their state representatives.

In the majority decision, which cites the Constitution's due process clause, Kennedy continued with the emotional arguments. He wrote of same-sex couples, "Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." And this actually brings us to the consistently missed central point of the matter: What is this "oldest institution" that we have a "right" to? As I wrote in an April piece entitled "Supreme Fallacy: Courts Have No Business Even Considering Marriage":

   What if someone told you that homosexuals
   already have the right to
   marry--meaning, they have a right
   [to] enter into a conjugal union with
   a member of the opposite sex--as
   that's what marriage is? Of course,
   faux-marriage advocates will protest
   and dispute this definition. This
   brings us to the universally ignored
   crux of the matter:

      The marriage debate is not about
   rights.

      It is about definitions.

      After all, how can you decide if
   there's a right to a thing unless you
   first determine what that thing is?

      Are the courts supposed to say
   "There is a right to we know not
   what"?

      The marriage debate cannot be
   about rights because no one--anywhere--disputes
   that all adult
   Americans have a right to "marry."
   Some disagree, apparently, on what
   "marriage" is.

      Yet if the courts aren't going to use
   the definition operative in Western
   civilization (and beyond) for millennia,
   what are they supposed to do? … 
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