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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