Thursday, June 27, 2013

What The Court Did And Did Not Say About Gay Marriage

It is extremely important to understand what the U.S. Supreme Court did AND DID NOT say concerning two cases it reviewed involving gay marriage.

In neither case did the court issue a finding on the constitutionality of gay marriage.

In a case involving Proposition 8 in California, a legally binding ballot initiative that banned gay marriage, the court declined to make a judgment and tossed the tennis ball back to a lower court. The issue before the court was whether the supporters of the Proposition 8 ballot initiative had legal "standing" to defend it in court after state officials had declined to appeal a finding issued by a lower court against the ballot initiative. The court ruled that those challenging the lower court decision had no legal standing to do so. 

The question addressed by the court in the second case was this: In states in which gay marriage has been made legal, is it permissible for the national government through a provision in a Defense of Marriage (DOMA) bill to deny to married gays federal benefits that accrue to married couples in non-gay relationships? The answer to that question, said the court in its majority opinion, is – no. If a state has recognized in law the validity of gay marriage – which is the case in Connecticut and 11 other states about half of which were initiated through court orders – U.S. Constitutional provisions require legally equal marriages to be treated equally.

In a dissenting opinion, Justice Antonin Scalia quite rightly lambasted Justice Anthony Kennedy, who wrote the majority opinion, for having engaged in wild, unnecessary and misleading moral and sociological puffery.

There are scores of questions best left unanswered by the Supreme Court the chief responsibility of which is to say what the U.S. Constitution means. Mr. Scalia sensed that Mr. Kennedy in his majority opinion was drifting into an unquiet sea of dubious sociological and ethical prescriptions. And he said so in a scalding dissent:

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Indeed, the court does not know – and cannot know – the practical effects of what may be a revolutionary rearrangement of “an aspect of marriage that had been unquestioned in our society for most of its existence.” The traditional family – mom, dad and 2.5 kids, the number of children required in a marriage to assure the continuity of a state or nation – has been from time immemorial the DNA of the social structure of the Western world, buttressed and supported by rational laws friendly to normative ethical codes and religious proscriptions. Aristotle begins his “Politics” with a discussion of the traditional family as an indispensable political unit. It is no hyperbole to say that the traditional family has been the foundation stone of Western civilization. Now, theoretically it may be possible to erect a more just and fruitful society on a different foundation stone. But it is nonsense of the worst kind to suggest that so profound a readjustment will not disturb other social pillars.

Speculation of this kind should not enter into the decisions of the high court. The court should be driven by the law, and only by the law. When it descends to sociology and politics, it loses all its moral footing. Courts are called upon to judge, never to prescribe palliatives for social ills and moral disorders.  All this is best left to oleaginous politicians, commentators and other soothsayers.
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