Friday, June 28, 2013

Marriage Rulings

It was a bad day for black robes. It is said that our freedoms are never safe when the legislature is in session. You could say something similar about when the Supreme Court is in session. Wednesday was the last day of this session, so, at least for a few more months, we can say “phew,” and stop fearing the daily onslaught.

At some future point I’d like to do a scorecard on the SCOTUS, but today the news about marriage is too heavy to cover more than that. Wednesday’s two rulings were on DOMA and Prop 8. (I wrote about the cases and issues at stake on April 1st.) Let’s start with this declaration first, because the news is creating less than truthful headlines: neither ruling declared “same-sex marriage” the law of the land. Both rulings, while not going the way I thought they should have, were minimalist in effect. 
Supreme Court
photo from NPR

A portion of the 1996 Defense of Marriage Act was struck down as unconstitutional. The law—which was brought forward by a Republican Congress, but was signed by Democrat President Bill Clinton, and his Democrat controlled Senate, and which Obama claimed to support until a few months ago—had definitional purposes. As far as federal law was concerned, marriage would be defined as a contract between a man and a woman, and spouse would be defined as one of the marriage partners, the opposite sex of the other spouse. The change brought about by Wednesday’s ruling is to eliminate a federal definition, meaning the federal government will use the definition allowed in any particular state. Essentially the outcome is that federal employees in states that allow for same-sex “marriage” can receive spousal benefits. There will probably be other eventual outcomes, and further confusion, but at this point that is the limit of the definition elimination.
The unfortunate part of the ruling is the reasoning. The majority opinion claims that the reason the definition needed to be eliminated was that its only purpose had been to harm certain less popular citizens. There was no legal rationale; there was only the supposition that the justices could divine the motives of the Congress, Senate, and President who codified into law what had been assumed to be true for the entire history of the country—and indeed for the entire history of civilization—and somehow discern that it was based only on hatred against a particular innocent group.
Scalia (may he live long!) wrote a scathing dissent. It was around two dozen pages; here are a couple of excerpts:
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.
He’s right. The real concern is the condemnation of all of us in the majority who still hold to the age-old definition of marriage as enemies of the human race. Condemning the masses as sub-human simply for disagreeing with the current liberal cause de jour is certainly not the intended purpose of having a judicial branch. Scalia adds this:
It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.
Considering how correct the liberal court feels itself to be, they were restrained in their result. They failed to claim there was a constitutional or basic human right to same-sex “marriage,” and instead allowed continued federal government confusion at the mercy of state differences. If they thought they could have gotten away with acting more strongly against the majority of Americans, they probably would have done so. 

Prop 8
The Prop 8 ruling was, as feared by both sides, a punt. The case was dismissed because the Supreme Court preferred not to grant standing to a private organization to defend a state law. Here’s a summary, again, of the situation.
The people of California long ago (around 2001, I believe) voted to continue defining marriage as a man and a woman; the state legislature overruled the people’s will. So the people responded through the initiative process and codified the traditional definition of marriage to overrule the legislature. This was Prop 8, which won in 2008 with 52% of the vote (a clear majority, and if you look at the voting, you see that only a few urban masses voted against the proposition, while nearly all counties had majorities voting in favor). Despite the win, a few judges flouted the law and “married” same-sex couples, and a judge decided to overrule the people from the bench and say that was lawful, because he thought it should be (he was a homosexual judge with an agenda, but refused to recuse himself or even be objective). The state of California was required to defend the law against this judicial behavior, but it refused. So the organization that had supported Prop 8 asked for standing. The case has been making its way up through district and circuit courts on its way to the Supreme Court.
outcome of Prop 8 vote
graphic source: Wikipedia
The Court said Wednesday that, because the Court had never before allowed a private entity to defend a state law, it would not do so now. In the process it overturned the 9th Circuit ruling and essentially said the law needed to be defended by the state of California. If the state continues to refuse to defend the law, that probably means judges may choose to “marry” same-sex couples afoul of the law, and there will continue to be confusion about the validity of those “marriages.”
But any way you look at it, the Supreme Court ruling fell short of approving same-sex “marriages” in California, and also gave a ruling that can only be applied to that particular state.
The aftermath isn’t good for real marriage, but it is worse for the initiative process for those states that have it. It says, “Sure, you can have an initiative process, but the outcome is irrelevant if the state government doesn’t happen to agree with the outcome.” The will of the people was seriously degraded with this ruling. 

Flotsam and Jetsam
While it could have been worse, the outcome for civilization was negative from these rulings. More than laws, however, which were only minimally affected, the opinions flamed the hateful vitriol against supporters of traditional marriage.
A comparison was brought to my attention, in a piece by Ben Shapiro for Breitbart. It was a case with Bob Jones University, back in 1983. That private university, a religious institution, had a rule against interracial dating. I never understood the belief against interracial dating or marriage. It seems odd and archaic today, but there were parts of the country (mostly southern) that held to separation of races longer than other places. So, while we may clearly disagree with Bob Jones University’s beliefs on that issue, they weren’t unheard of at the time. Their non-profit tax-exempt status was removed—not because they suddenly became a for-profit organization, but because their beliefs weren’t politically correct:
Government has a fundamental, overriding interest in eradicating racial discrimination in education … which substantially outweighs whatever burden denial of tax benefits places on [the university’s] exercise of their religious beliefs.
The Court decided against the University based only on its beliefs. So the question is, could the Court do the same with churches, schools, businesses, and other organizations that hold what they deem is an “enemy of the human race” belief?
The tactic of the tyrannical hemisphere has been to control the language, the message. To move popular opinion until people think what they used to know instinctively isn’t so anymore. And anyone who still has the old common sense are labeled the “enemies of the human race.” At least we have a Supreme Court justice who spelled out what is happening, so there’s a record for historical anthropologists to someday dust off and discover.
I tend to consider the relationship to civilization when history happens before our eyes. I came across this quote during the days’ post-decision reading, and it seemed apt:
This time, however, the barbarians are not waiting beyond the frontiers; they have already been governing us for quite some time. And it is our lack of consciousness of this that constitutes part of our predicament. We are waiting not for a Godot, but for another—doubtless quite different—St. Benedict.  Alasdair MacIntyre, After Virtue 

Hopeful Extra
Thursday the 10th Circuit Court ruled in favor of Hobby Lobby, which refused on religious grounds to provide medical coverage for abortifacients (abortion inducing drugs), just in time to keep them from having to pay fines of $1.3 million a day, that were set to start July 1st. Courts don’t always go wrong. Not yet.

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