Monday, July 1, 2013

Roe v Wade of marriage

Back from vacation last week and ready to comment on what happened on the recent Supreme Court decisions on marriage.  It looks like the Supreme Court issued a Roe v. Wade type decision on marriage.  At least that's what some commentators are saying.  Here's one by professor Hadley Arkes who references Scalia's dissent.
These decisions, handed down by the Court today, affect to be limited in their reach, but they are even worse than they appear, and they cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short steps sure to come, virtually all of the barriers to same-sex marriage in this country can be swept away. Even constitutional amendments, passed by so many of the states, can be overridden now. The engine put in place to power this drive is supplied by Justice Kennedy’s “hate speech,” offering itself as the opinion of the Court in U.S. v. Windsor. Kennedy wrote for the Court in striking down Section 3 of the Defense of Marriage Act (DOMA), the part of the act that recognized as “marriage,” in federal law, only the union of a man and woman. 

In Kennedy’s translation, the Defense of Marriage Act showed its animus in its very title: The defense of marriage was simply another way of disparaging and “denigrating” gays and lesbians, and denying dignity to their “relationships.” As Justice Scalia noted so tellingly in his dissent, Kennedy could characterize then as bigots the 85 senators who voted for the Act, along with the president (Clinton) who signed it. Every plausible account of marriage as a relation of a man and woman can then be swept away, as so much cover for malice and blind hatred.
 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.”
In summary, the decision is another power grab by our liberal elites in the judiciary and expands the cultural wars on the marriage front.  And it opens the door to further attacks on religious liberties - one of the chief reasons for our break with Britain during the Revolutionary War period.  In my estimation the left will not be satisfied until they stifle all dissent.  They'll use the use of tax codes and anti-discrimination lawsuits with the threat of fines and more to achieve their goal of silencing dissent from leftist/liberal orthodoxy.

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