Yes it did take place halfway round the world. But in this age of instant worldwide communication rest assured that once anyone anywhere concocts any far-out scheme it will arrive here sooner or later probably sooner. And dont be surprised if five justices give it serious consideration. What is NOT Stated Here The probable coming same-sex marriage decision will be but the latest illustration of a long history of judicial abuse of power. Nothing above should be misconstrued ormore likelymisrepresented as endorsing or opposing either sides position(s) in the same-sex marriage decision by likely no more than five out of nine human beings who happen to be Supreme Court justices. Rather the position taken here is that these five power-wielding mere mortals have no business deciding this at all. They have absolutely no legitimate Constitutional authority whatsoever to impose their personal moral values upon well over 300 million people in what was founded as a representative democracy.* Dog-marriage is a reductio ad absurdum of what all too often has been perpetrated by justices whose happenstance occupancy of high court black robes does not confer upon them superior morality wisdom or rationalitycontrary to their inflated opinion of themselves. Justices Scalia and Thomas and Chief Justice Rehnquist were once left breathless (p. 12) by fellow justices arrogance." More recently Scalia objected to (2) five justices jaw-dropping … assertion of judicial supremacy over the peoples Representatives in Congress and the Executive." Not infrequently judicial arrogance is accompanied by absurdity. With little effort one can write a long article or perhaps even a book filled with examples of justices absurdities. A few should suffice to show that these are not confined to same-sex marriage not by a long shot. First justices once declared (p. 41n) that raping a sixteen-year-old under threat of death three weeks after she gave birth wasunharmful! Second few Americans realize that justices have created what they call a constitutional right exclusively for depraved human beings already convicted of the most gruesome acts to commit additional depraved violence free from any punishment whatsoever. (If five justices want something they label it a constitutional right" regardless of whether or not highly literate people can find it in the actual Constitution.) Third justices declared that a young man who sexually assaulted four elderly womenincluding his grandmotherand murdered one of them should be allowed to succeed with the argument" that he should not be executed because he was only dangerous to old ladies (pp. 9-10) and would not be a threat if sentenced to life without parole (which in reality cannot be guaranteed). Even so three out of four opinions on behalf of the rapist-murderer occupying 19 pages did not mention grandmother" at all! Fourth it is beyond absurd for justices to decree that no judge or jury can ever find (15-19) that a young man nearly 18 years old is mature enough to fully understand that premeditated torture-murder is immoral and unlawful but that judges may rule (pp. 899 970) that 12-year-old girls are mature enough to decide to have an abortion. (It should not surprise anyone if not long from now five justices rule that 12-year-old boys can be mature enough to validly consent to have sex with 45-year-old men.) Popular Support Seeking Judicial Fiats If popular support for same-sex marriage is growing as advocates claim why dont they just ask elected legislators rather than unelected judges to write or re-write laws? Moreover in states with initiative and referendum a popular majority can change the law without legislators. After a California majority voted for Proposition 8 to restrict marriage to one man and one woman it was beyond passing strange when opponents of that proposition went to court seeking its nullification by judicial fiat while at the same time claiming that a majority of voters now supported same-sex marriage. Why wasnt another referendum sought for repeal? Recently Catholic Ireland adopted same-sex marriage by referendum. Also advocates already have obtained much from elected officials. If support is as widespread as claimed it should be unnecessary to short-circuit the political process through judicial fiat whose legitimacy is neither respected nor accepted by millions. (Of course polls are always open to manipulation and at least one recent poll was recently exposed as a fraud in purporting to show wider than actual support for same-sex marriage.) The advantage of legislative over judicial lawmaking is that justices pre-empt p. 20 the democratic debate" by inscribing… current preferences…into our Basic Law." These are made unchangeable (p. 567) by removing them from the democratic process and writing them into the Constitution" which is thus judicially amended to include sweeping rules embodying any five justices personal values. For example when they constitutionalized a right to homosexual sodomy justices declared (p. 11): liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." As quoted above Justice Scalia objected that this called into question all state laws concerning sex. More recently Justice Alito suggested that if States are constitutionally prohibited from restricting marriage to one man and one woman the same constitutional rule would require the States to permit incest (p. 33) and group marriage (pp. 17-19). These examples illustrate Judge (and later Justice) Benjamin Cardozos famous reference to the tendency of a principle to expand itself to the limit of its logic." That often happens when justices usurp the prerogatives of elected officials by deciding hotly contested political issues about which the Constitution is silent. By contrast if these issues are left to elected officials to resolve after public debate the law can be adjusted and re-adjusted. Some laws can then be left in place and others changed without trying to turn them into irrational one-size-fits-all legislation. To have same-sex marriage there is no need for blanket principles that apply to all sex matters including man/boy and human/animal sex incest bigamy polygamyor dog weddings. Justice Scalia repeatedly has told audiences that when the Constitution says nothing about an issue persuade your fellow citizens." Instead many activists apparently lacking confidence in their own persuasiveness prefer to short circuit the process. Two decades ago Scalia (joined by Rehnquist White and Thomas) warned (p. 1002):nine pairs of police sniffer dogs dressed in shawls hats and socks were placed on a decorated platform like those used in traditional Buddhist weddings.
* * * *
The dog marriages were registered by an official in the presence of a crowd of veterinary surgeons medical doctors top police officers and the public at a ceremony …. Local television showed the dog couples later being driven away in a decorated police jeep for their honeymoons."
And two years ago Scalia repeated (p. 26):By foreclosing all democratic outlet for the deep passions abortion arouses by banishing the issue from the political forum that gives all participants even the losers the satisfaction of a fair hearing and an honest fight by continuing the imposition of a rigid national rule instead of allowing for regional differences the Court merely prolongs and intensifies the anguish.
For decades justices have been arrogantly illegitimately and absurdlyusurping legislative prerogatives forcing their personal morality down the throats of everyone else. Justice Thurgood Marshalls former law clerk Harvard Professor Mark Tushnet asks: Why do we let them get away with it?" Why indeed!! ______________________________________ * With Obama Care about to be decided as well as same-sex marriage the differences should be stressed. Cases where the Constitution is silent should not be confused with cases where the Constitution and federal law are not. While this cannot be explained here in detail (but see this) it is noteworthy that defenders of Obama Care have sought in 2012 and again in 2015 to have clear statutory and Constitutional provisions ignored while same-sex marriage advocates want the Supreme Court to make up imaginary provisions that do not even exist. Copyright © 2015 by Lester Jackson Ph.D. a former college Political Science teacher who views mainstream media suppression of the truth as essential to harmful judicial activism. His recent articles on the U.S. Supreme Court capital punishment and American Politics are collected here and here.We might have let the People decide. But that the majority will not do. Some will rejoice in todays decision and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat.