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.

The battle is joined. Pro-homosexual marriage judge goes after DOMA.

The battle over marriage in our nation was taken to another level with the ruling by a federal judge in Boston that the federal law defining marriage as one man and one woman is unconstitutional.

Professor Hadley Arkes says the judge's reasoning was weak.

Judge Tauro accomplishes this task by essentially presupposing the most decisive points that he should have been obliged to establish in an argument. A good third of the judge’s opinion was spent in showing all of the benefits that would be denied to spouses of same-sex couples in the federal government. They would be denied those benefits simply because Congress, which has the sole authority to legislate the federal code, stipulated that every reference to marriage in that code would be a reference to a legal union of a man and a woman. And yes, the consequence of that stipulation in the meaning of marriage does mean that no companion of the same sex can have the standing of a spouse to receive benefits in the form of retirement, pension, medical care, to the extent those benefits are conferred on spouses and members of the legal “family.”

But to compile the litany of benefits foregone is not to make the case that they have been withheld wrongly, without justification. An argument must be supplied. Judge Tauro wanted to argue that the withholding of benefits was illegitimate because the distinction between a marriage composed of a man and a woman, and a marriage composed of people of the same sex, is an illegitimate, unjustified distinction. For Judge Tauro that distinction treats differently people who are in the same situation — i.e., people who claim to be married, as indeed they may claim right now under the laws of Massachusetts.

I find it curious that advocates argue there is no rational basis for defining marriage as one man and one woman. Ignored are the facts that children do do better with their mother and father. That homosexual unions are notoriously unstable and don't provide a good environment for raising children. That society's weaken and decline when the sexual mores are loosened. That homosexual behavior is inherently unhealthy and granting it marital status is putting the state's stamp of approval on unhealthy activities. All conveniently ignored.

Expect another shot at marriage when the federal judge hearing the challenge to Prop 8 in California comes out with his expected pro-homosexual marriage ruling shortly. These decisions will no doubt help make marriage a political issue in the fall's elections across the country.