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SCOTUS, Marriage, and "Raw Judicial Power"
By Bill Muehlenberg
CULTURE WATCH
http://www.billmuehlenberg.com/2013/06/27/scotus-marriage-and-raw-judicial-power/
June 27, 2013
Forty years ago the Supreme Court of the United States engaged in "an exercise in raw judicial power" as dissenting Justice Byron White put it in regards to the abortion decision, Roe v Wade. Yesterday SCOTUS basically did the same when it comes to marriage. SCOTUS is really a law unto itself: instead of carefully interpreting the law it is now radically re-interpreting and creating the law.
And as dissenting Justice Antonin Scalia rightly said, it never should have been involved in this issue in the first place. But it has, looking at two issues about marriage: DOMA (the Defence of Marriage Act) and Prop 8 (California's Proposition 8 ruling on marriage). The outcome? Said Scalia, "This case is about power ... it is about the power of our people to govern themselves, and the power of this court to pronounce the law."
Although SCOTUS did not come out and say "We now can have homosexual marriage" it did open the door greatly to that, especially in its DOMA ruling. It argued that DOMA is unconstitutional, while stating that Prop 8 effectively has no legal standing. I link to two articles below which go into these decisions in some details, but I like the way Robert A. J. Gagnon has summarised things, so I defer to him:
"Let's be honest: Today's decisions of the Supreme Court of the United States, rendered in two close 5-4 votes, is a serious body blow to the natural definition of marriage as a union of one man and one woman and to the rule of law generally. It is true that the result could have been worse: SCOTUS did not rule in favor of 'gay marriage' across all 50 states. Nevertheless, it did provide an irreversible toehold of 'gay marriage' on federal and state governments.
"In one decision (Hollingsworth v. Perry) the Court made the ludicrous ruling that a group of citizens representing California's Proposition 8 (a 2008 citizen-initiated constitutional amendment to define marriage as the union of a man and a woman that passed by a 52.24% of the popular vote) had no standing to defend it before SCOTUS when the governor and attorney general of California refused to do so. This ruling rewards the state executive branch for abdicating its constitutional mandate. It means that the legal will of the people can be thwarted by the conspiracy of a single Chief U.S. District Court judge in a homosexual relationship (Vaughn R. Walker, who ruled in 2010 that Prop 8 was a violation of the U.S. Constitution), a 2-1 decision by the left-wing U.S. 9th Circuit Court of Appeals, and a left-wing state executive branch that violates its duty to defend the law of the land.
"In the second decision (United States v. Windsor), the Court made the equally ludicrous ruling that the U.S. Congress has no right to define the word 'marriage' in the national policies and laws that the federal government enacts but must be dictated as to the meaning of the word by each and every individual state. In striking down Section 3 of DOMA (the Defense of Marriage Act), SCOTUS nullified an act passed by an overwhelming bipartisan majority in the U.S. Congress in 1996 (342-67 in the House; 85-14 in the Senate). True, SCOTUS did not strike down Section 2 of DOMA, which allows any given state not to recognize 'gay marriage' in other states as valid within its own borders.
"Eventually, of course, SCOTUS will rule that it is unconstitutional for the federal government to grant marital benefits to homosexual unions in some states but not in others. The irony will likely go over the heads of the five justices that voted for this monstrous ruling: (1) SCOTUS strikes down a uniform federal policy against recognizing 'gay marriage' in order to (2) set up a situation where the federal government observes 'gay marriage' only in those states that legislate it, leading to (3) a future ruling by SCOTUS that there must be a uniform federal policy in favor of recognizing 'gay marriage.'
"In effect the U.S. Supreme Court has ruled that men and women are as much sexual complements or counterparts to their own sex as they are to the only other sex, anatomically, physiologically, psychologically. The height of moral and legal absurdity."
Yes, five out of nine men are deciding for an entire nation how we should understand marriage. Marriage as an institution of course predates the institution of the state. Yet now we have activist judges basically saying that the state can now redefine marriage according to its own worldview.
Al Mohler has also penned a commentary on this and is worth citing as well: "It is virtually impossible to exaggerate the future impact of the DOMA decision, but it is not yet a new Roe v. Wade. Instead, it sets up a future legal challenge from any citizen in any state that does not have legal same-sex marriage. The Court's decision in that future case, surely not long in our future, will be the new Roe v. Wade - a sweeping decision that would create a new 'right' that would mean the coast-to-coast legalization of same-sex marriage. Today's decisions do not take us there, but they take us to the precipice of that sweeping decision. That is especially true of the DOMA case...
"While the immediate effects of the striking down of DOMA's federal definition of marriage are not specifically clear, it does mean that the federal government will now be required to recognize any same-sex union declared to be legal in any state, extending full recognition and extending all federal marriage benefits to that same-sex marriage. The Obama Administration will have to make a myriad of decisions about how this is to be done. Interestingly, this will put President Obama, who last year 'evolved' into full support for legal same-sex marriage, on the hot seat once again."
At least we had some common sense and some mental and moral clarity coming from the dissenters. Scalia, as mentioned, has written prophetically here. Says Mohler, "Even though the Court did not rule today that all states must legally recognize and allow for same-sex marriages, the handwriting is on the wall. Justice Kennedy's majority opinion implicitly invites any citizen who resides in a state that does not allow for same-sex marriage to claim that his or her constitutional rights are violated on the basis of the Court's opinion handed down today. You can count on a challenge of this form arising in short order.
"As Justice Scalia noted in his dissent today, 'As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.' The Court's majority did not want to pay the political price that a decision as immediately sweeping as Roe v. Wade would have cost. Instead, the majority decided to send a clear signal that such a case will now be well received. It struck down DOMA by employing a logic that, as Scalia noted, cannot stop with the striking down of DOMA. It can only stop with the full legalization of same-sex marriage in all fifty states by judicial fiat.
"But wait, for there are more shoes to drop. In his opinion today, remember that Justice Kennedy wrote these crucial words: 'The history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.'
"What about laws against polygamy? Was Justice Kennedy even aware of just how sweeping this statement would be? Laws against polygamy were explicitly passed in order to 'interfere' with the 'equal dignity' of multiple-spousal marriages. Justice Kennedy's opinion, now the Court's decision, destroys any legal argument against polygamy."
Mohler offers this sobering conclusion: "The Christian church does not ask the U. S. Supreme Court, or any other human court, what marriage is. Marriage is a pre-political institution defined by our Creator - for His glory and for human flourishing. Today's decisions will create serious religious liberty challenges for all churches, Christian institutions, and Christian citizens in this nation. But the greatest impact of these decisions is the further marginalization and subversion of marriage. The destruction of marriage did not start recently, and it did not start with same-sex marriage, but its effects will be devastating.
"Christians will have to think hard - and fast - about these issues and our proper response. We will have to learn an entire new set of missional skills as we seek to remain faithful to Christ in this fast-changing culture. And, as warned by Justice Scalia, we do so knowing that we are waiting for the other shoes to drop."
And we will not wait long for that.
