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.
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| Supreme Court photo from NPR |
DOMA
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.
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| 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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