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As usual, in mid-June, the hearts of Supreme Court junkies beat ever more rapidly as they eagerly await “blockbuster” ex cathedra diktats from on high. Of great interest is whether Justice Anthony Kennedy meant what he said just two years ago, when five justices overpowered and insulted (Scalia, pp. 21, 25) four justices to declare unconstitutional an overwhelmingly enacted federal law restricting marriage to opposite-sex couples. Writing for the five justices, Kennedy promised (pp. 25-26) that they had “confined” their ruling to requiring federal recognition of same-sex marriages in states choosing to make them lawful. However, what is now awaited is whether five justices will further abuse their power by barring any State from making same-sex marriage unlawful.
The five-justice fiat two years ago was itself predicted (5-6) by Scalia a decade earlier: “… Every single one of these State laws … against bigamy, same-sex marriage, adult incest, prostitution … bestiality, and obscenity … is called into question by today’s decision….” His then-scoffed-at prediction was vindicated in 2013.
If five justices, including Kennedy, again prove Scalia prescient, this “raw judicial power” spectacle will not be over.
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Organizations long advocating sex between men and boys, and between humans and animals (see also), doubtless anticipate their turn at having five human beings who happen to sit on the Supreme Court proclaim that the Constitution protects their “lifestyle choices”—regardless of duly enacted laws, historic beliefs and traditions, and the wishes of millions of Americans–often majorities–who still adhere to those beliefs.
Fanciful, you say? Shortly after the last “confined” gay marriage decision, a group wedding for police dogs took place halfway round the world, as:
…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.”
Yes, it did take place halfway around 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 don’t be surprised if five justices give it serious consideration.
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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 or—more likely—misrepresented as endorsing or opposing either side’s 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 rationality—contrary 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 people’s 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.
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First, justices once declared (p. 41n) that raping a sixteen-year-old, under threat of death three weeks after she gave birth, was—unharmful! 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 women—including his grandmother—and 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 don’t 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 wasn’t 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 “remov[ing them] from the democratic process and writ[ing 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 Cardozo’s 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, polygamy—or 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):
[B]y 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.
And two years ago, Scalia repeated (p. 26):
We might have let the People decide. But that the majority will not do. Some will rejoice in today’s 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.
For decades, justices have been arrogantly, illegitimately —and absurdly—usurping legislative prerogatives, forcing their personal morality down the throats of everyone else.
Justice Thurgood Marshall’s former law clerk, Harvard Professor Mark Tushnet, asks: “Why do we let them get away with it?”
* With ObamaCare 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 ObamaCare 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.
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by the owners of this website.