I have made a point of stating that we do have a duty to respect the law and that the Supreme Court of John Marshall established itself in Marbury v. Madison as the ultimate arbiter of constitutionality of American law.
I have also made the point that the basis for this assertion is that the laws are duly passed and that the judicial review is based on the Constitution – perhaps differing interpretations of the Constitution – but having logical ties to the document and based on legal precedent.
I never counted on the Supreme Court to be so arrogant to stop bending the Constitution and just feed it to the shredder – but that is what they did yesterday.
What the liberal wing of the Court did yesterday, aided and abetted by switch hitter Anthony Kennedy, was to functionally invalidate the Supreme Court by making a decision with absolutely no foundation in law, American or otherwise. They made a decision that was rooted in power, politics and emotion.
The Court’s sole function is to render decisions based on faithfulness to the Constitution – when they vacate that rational design as set forth in the Constitution, they have no purpose, reason or right to exist.
Mark Levin (who wrote a very good book: Men in Black: How the Supreme Court Is Destroying America in 2006) said:
Just because five lawyers in black robes, one of whom was purported to be a conservative, a man I knew a long time ago, issue a decision of the sort that they issued doesn’t make it proper. As a matter of fact, this decision I would go as far to say is lawless. Absolutely lawless. That’s why people are stunned.
And he is absolutely right because as Justice Scalia notes in his scathing dissent, the majority bothers to list nothing except their perception that the motivation behind DOMA was to harm gays:
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once Confederate Southern state (familiar objects of the Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
I’m not quite sure how a law that defends marriage is designed to harm gays but Anthony Kennedy evidently sees it.
Rush Limbaugh is spot on with this comment:
Scalia’s dissent today in the Defense of Marriage Act decision, I’m gonna read portions of it to you. It is unlike any dissent by any justice I’ve ever read about any case. And that’s because Scalia says that the majority in the DOMA ruling was unlike any majority that this court has ever produced, that it was filled with venom and rage. If Scalia’s dissent is right, what it means is that the common, ordinary fisticuff arguments between left and right in this country have now taken over the Supreme Court. And the law and judicial restraint, temperament and all that has evaporated. And the court is no different than a barroom now. Whoever has the largest number on one side, the loudest voices and the most insulting voices wins.
For the record, I don’t care about gay unions. I don’t care if you are gay, straight or bi – makes no difference to me. My position on gay marriage is libertarian – I actually don’t think that government has any business in marriage at all, gay or straight – I define marriage as the union between a man, a woman and God, not two people and government. I believe that homosexuality is wrong but that is my religious view, not my civil view. What you do in your bedroom, how you do it and with whom is none of my business – when it does become my business is when it is forced on me through schools and law and I am told that I have no choice but to accept it in direct contradiction to my core beliefs.
I’d like to believe that there is good news here (as Heritage points out) but the long term implications of the Windsor ruling are not good. The Gay Rights cabal celebrates this decision at its peril – it may be a near term “victory” but this decision is bad for everybody – the liberals on the court just made it the prime tool for the implementation of whatever politically correct fad carries the day. Cultures change – just as we have seen the opposition of gay marriage change over the past 20 years, it can just as easily change again.
What the US v. Windsor decision does do is to legally codify that for holding a position (like any person or group who opposes gay marriage on any grounds) that is counter to SCOTUS’s interpretation of current social tides, people can now be legally declared bigots and a homophobes – and those distinctions are not of any historical legal definition nor or have they ever been the province of the Court to designate – but because we are now classified as such, our position is therefore invalid on its face and shall not be considered. It is our motivation that matters, our hidden intent, not what the law says. In the words of Judge Scalia, the liberal wing of the court has declared us the enemy of the human race:
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 con- demn, 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 “dis- parage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homo- sexual. 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.
What it also does is open the door to nationalization of gay marriage by invalidating the Tenth Amendment and the rights of a state to define marriage, something that has traditionally been a state responsibility, not a federal one. As Hadley Arkes wrote at NRO’s Bench Memos blog yesterday:
As Scalia suggested, that opinion can now become the predicate for challenges to the laws on marriage in all of the States. A couple of the same sex need merely go into a federal court and invoke Justice Kennedy’s opinion in the DOMA case (U.S. v. Windsor): The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate. Any such law cannot find a rational ground of justification. As Kennedy had famously said in Romer v. Evans, those kinds of laws can be explained only in terms of an irrational “animus.”
That may be enough to have the laws and the constitutional provision overruled. But it gets even better if the state has a Democratic governor: For he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution. And by the holding today in the case on Proposition 8 in California (Hollingsworth v. Perry), the backers of the constitutional amendment will have no standing in court to contest the judgment. Constitutional amendments are meant to secure provisions that will not be undone by the shift in season from one election to another. But with the combination of these two cases today, any liberal governor can virtually undo a constitutional amendment on marriage in his state.
By setting this new standard of “irrational animus”, the liberals on the Supreme Court have forever removed themselves from any binding ties to the Constitution and have established the court as an unaccountable and unelected political body, a super-legislative, dictatorial body whose members are appointed for life by presidents based on ideology. This is rule by the elite, in Plato’s Republic it was the Guardians, with Hobbes’ Leviathan it was a Sovereign and in More’s ideal society, Utopia, it was a Prince. Like the Basij of the Islamic Republic of Iran, we now have the Black Robes to enforce social purity.
We can fight back and we need to do so now. Arkes notes something that I have proposed – to use Article V of the Constitution:
Our friends in the National Organization of Marriage could well be put out of business by the work that the Court today has completed. They may have to think anew on a strategic path once considered and long ago discarded: They may have to ponder again the use of Article V of the Constitution to amend the constitution on the appeal of two-thirds of the states. If we add the number of states that have constitutional amendments now to protect marriage, along with States that have resisted same-sex marriage in their laws, they would be more than enough to call for a constitutional convention to amend the Constitution on this subject.
As I have noted, the conservative power base is at the state level in governorships and state legislatures. We should start pressing at the state level for a Constitutional Convention to address the erosion of liberty, states’ rights and the corruption of the federal government. I’ve made the point before, the federal government is not going to give the states their Tenth Amendment rights back – they are going to have to be taken back.
I’m calling on every classic liberal/libertarian/conservative blogger in every state to start the conversation in support of such an action. We have a Constitutional right to demand it. It is the only way to put the Supreme Court (and the Executive) back in its box.