SCOTUS On Same Sex Marriage

As an introduction I would like to offer this:

Most media today are putting forth that conservatives do not approve of the gay lifestyle and, thus, hate the Supreme Court's ruling on same sex marriage. Except for religiously intollerant, this is not the case. The issue with conservatives is NOT one's life style. Conservatives generally take the attitude of "Live & Let Live". Rather, the issue with conservatives is that the Supreme Court of late has been overstepping it's powers as defined in the US Constitution.

The media also offers that the opposite of liberalism is conservatism. This, indeed, is NOT accurate. Do not be deluded by the media's message on this. The opposite of conservatism is progressivism. Your garden variey of conservative shares many of the same desires that do liberals - but not so the progressives'.

Progressivism is like the evil twin of liberalism. It has co-opted the liberal brand to promote what I refer to as "Divide and Rule".

This offering provides some insight into the Supreme Court's ruling/opinion on the same sex marriage issue.

I fully applaud the intent of the court's decision on same sex marriage. This statement should be obvious from my earlier offering on same sex marriage. However, as with everything these days, nothing is as simple as it may appear. That I fully support morally the decision is based on my belief that no one in our Nation should be denied by the federal government nor by any state government those rights belonging to others alone. However, the manner by which the court's decision was reached, to me, is a violation of the responsibilities laid down by our Constitution on the role of SCOTUS. See Article III of the US Constitution on the powers relegated to the Supreme Court.

There are numerous instances in the US Constitution that were designed to protect people from undue government interference and/or control - Namely the Bill of Rights, The Privileges and Immunities Clause of Article IV, Section 2, the 13th Amendment, The 14th Amendment (Section 1), the 19th Amendment, etc. In fact, Article 1 Section 8 defines the finite list of what the government may do. Anything else is left to the States to decide upon and implement as they see fit.

The job of the SCOTUS is to rule (i.e., provide an opinion) on lower courts' rulings and laws passed by Congress as to the "constitutionality" of such. Their job is NOT to make law or to change a law. Unfortunately, this is exactly what SCOTUS has done - yet again.

I have read SOTUS' opinion / ruling on Same Sex Marriage - all 103 pages. If you would like to do so as well, Click Here.

The 5-4 opinion, written by Supreme Court Justice Anthony Kennedy, states: “The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state."

NO! The 14th Amendment does no such thing - it may infer that to him, but it does not state such - nor anything close to that. (Note: He was referring to Section 1.) And, this is one reason that court's rulings are called "opinions" - he has a right to his opinion. However, it is not the right of the court essentially to create law based on such opinions. My statement is valid even though I morally and philosophically agree with his opinion - it's just not the court's job!

Further, there is nothing in the US Constitution anywhere about issuing licenses to anyone for anything.

But, let's delve into this a little deeper.

The 14th Amendment, Section 1, states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws".

The pertinent phrase seems to be "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; .... As the 14th Amendment clearly came after the "The Privileges and Immunities Clause" (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause), the framers of the 14th Amendment were well aware of the aforementioned clause and how the framers of the Constitution meant it to be interpreted.

The Constitution NOWHERE defines the exact meaning of "privileges and immunities". The closest we can come are the words of James Madison, the primary author of the Constitution, in the Federalist Papers #42 and of Alexander Hamilton in the Federalist Papers #80. Both echoed the following: that the Privileges and Immunities Clause in the federal Constitution involves controversies between a state and a citizen of another state. Thus, the Privileges and Immunities Clause fails to dictate how a state must treat its own citizens.

Any other interpretation has been rejected since the eighteenth century - until now.

Justice Anthony Kennedy is clearly wrong in his opinion - Constitutionally, logically and historically. It appears Justice Kennedy has incorrectly conflated the true meanings of the 14th Amendment and of the Privileges and Immunities Clause. But, his opinion counts much more so than does mine. This does not mean his opinion is correct - just that it counts more. At least I'm offering Constitutional logic to support my assertions; something he did not do. Of course, there is little recourse to correct an incorrect SCOTUS opinion.

As an aside, Justice Roberts made a similar error with the opinion on the Health Care Law. He actually had the original words in the Bill changed to reflect that the concept of a "fine" should be that of a "tax". Doing such is NOT authorized by the Constitution. In fact his actions created yet another constitutional issue for the Bill.

The SCOTUS is not empowered to create law - both of these justices did exactly that.

So, with this understanding of the Constitution, a State - any State - may not treat someone from another State in a manner inconsistent with their home State's laws. However, this does NOT imply that ALL States must have the same laws for each of their citizens as exist in other States. Now, should it? Of course; but that's NOT what the Constitution says. So, for a proper and legal change to the Constitution look to Article V of the Constitution - not the court(s).

Why am I being picky on his use of the word "requires" and the meaning of "privileges and immunities" clause? In matters legal (laws, contracts, etc.) specific wording is of the utmost importance. The court's responsibilty is to offer an opinion of what is written - not on what the court thinks someone "may" have meant. Otherwise, chaos reigns. Simplistic example: Today the court rules in way "A", "Fred must have meant a, b, c." Tomorrow, some future court rules in way "B", "Fred must have meant d, e, f."

Consistency in the law's application is key to a well run and orderly Nation. Otherwise disorder and confusion reign.

Justice Scalia in part had this to say in his dissenting opinion:

Scalia wrote his dissent “to call attention to this Court’s threat to American democracy.”

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves,”

His point is an extremely important one. The US Constitution fails to mention marriage, or any like union of people, anywhere. It's not in there. So, what the recent court's decision did, in fact, was to create or make "law". It is the job of Congress to do that. That's why the concept of "separation of powers" is so important to our governmental system.

A better course of action on this most important issue would have been for Congress to formulate and pass a law that said something like:

"The right of two people to join into a union, commonly referred to as marriage or civil union, shall not be abridged." - or some such.

Doing so would allow the court, should the question even arise, to render an opinion on a law - it's proper role in our government. The decision would have been the same (one hopes). But, with this method there would be no controversy re: the court "over stepping its bounds".

The court "over stepping its bounds" is not new - just wrong. And, there are a multitude of examples of the court doing this - recently and in the past. Just because they did it does not make it right.

Such overreach by the Court has unintended consequences. No one appreciates their moral or philosphical views being usurped by judical rulings or like laws being executed for which the people had no voice.

It is human nature for people to react negatively to the minority forcing the majority. What may have been a "live and let live" attitude prior to such a ruling/law can abruptly shift to negative support for the measure(s). People, of course, will abide by the law but they will harbor resentment. This resentment can fester into feelings and actions not in the best interest of us all. As an example of people not wanting the minority to force the majority, Click Here.

Trust that I am correct on this. Or, wait and see.


Other Scalia quotes on the "ruling"are offered below. In Scalia's blistering comments he is NOT addressing the rights of those wishing to enter into a same sex marriage either for or against; rather, he is addressing the RIGHT (or lack of right) of the SCOTUS to make or create law.

Justice Scalia:

“I write separately to call attention to this Court’s threat to American democracy.”

“[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

“The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

“[T]he opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)

“Rights, we are told, can ‘rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.’ (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)

“And we are told that, ‘[i]n any particular case,’ either the Equal Protection or Due Process Clause ‘may be thought to capture the essence of [a] right in a more accurate and comprehensive way,’ than the other, ‘even as the two Clauses may converge in the identification and definition of the right.’ (What say? What possible ‘essence’ does substantive due process ‘capture’ in an ‘accurate and comprehensive way’? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses ‘converge in the identification and definition of [a] right,’ that is only because the majority’s likes and dislikes are predictably compatible.)”

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. … Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

“But the Court ends this debate, in an opinion lacking even a thin veneer of law.”

“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ‘ One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’ The ‘we,’ needless to say, is the nine of us.”

“[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

“[W]hat really astounds is the hubris reflected in today’s judicial Putsch.” (Note: I had to look up the definition here - Putsch = 'a violent attempt to overthrow a government.')

“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”