SCOTUS Steps In It (Gay Marriage)


Part I

So we got the gay marriage opinion and there was much rejoicing.

How foolish you are…

Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28.

Half of this is right.  The second half is an outrage, but no surprise, and it will have ramifications those on both sides of this argument are not going to like.

First, let me point out to those on the religious right of the aisle: You deserved this decision.  More than 15 years ago I wrote a number of letters to the Catholic Archdiocese urging them to ignore state marriage licenses — in fact, to deliberately eschew them and instead celebrate only Catholic marriages.  That is, no license, period.  If you wanted to have a civil document of some sort, then go see the judge.  For a religious marriage, go see a Priest.  Never the twain shall meet, for the simple reason that Catholic (and most other Christian sectarian) teaching on marriage was irreconcilable with civil marriage and its provisions and thus by affixing a signature and certification to such a document the Church was profaning itself.

Well, if you fornicate on the Altar you cannot complain when the lightning bolt shows up out of the blue, and it did.  Congratulations to all of those Christian faiths that earned what was delivered to you today.

Let us look at the facts, most-specifically the fact that marriage was not subject to “license” until it became fashionable to constrain who could marry.  Historically marriages were “recorded” in the family Bible – and nowhere else.  Marriage laws in the United States arose from the desire to exclude certain marriage choices, most-particularly those who would choose partners that were of the “wrong” color or heritage.  Forcing the celebrants to appear before a Justice of the Peace or Clerk of the Court was a suitable means of enforcing racism.

But this is not the evil found in the decision today.  No, that evil is found in the destruction of federalism, the foundation of this nation.  This decision puts a nearly-final nail in that coffin, for it embraces not federalism and its principles but rather unification — that is, the principle that there is no union of 50 states but rather one federal government and thus one state, with the arbitrary boundaries between states being mere lines on a map.

The Court could have reached a decision that a marriage contracted in one state had to be respected in the others.  That’s Federalism and, incidentally, disrespect of that principle, which was foundational to this Republic and remains so, is the primary reason the Civil War was undertaken.

In other words that I get married to another man in California and then travel to Florida (where such is not legal) doesn’t mean that Florida has to marry two men.  It does, however, mean that Florida has to recognize that under California law we’re married.  It was the willful refusal to honor this in the 1860 timeframe that led states to break away and declare that they were no longer part of the United States and this sort of decision risks that exact same thing happening again.

No, if it does it won’t be because of two gay people demanding a marriage “license.”  Rather it will be because some state, say, New York, will demand that Florida impose New York’s tax and regulatory schemes on its population!

Far-fetched?  Not at all – this is already being proposed under so-called “Internet sales tax” changes, where nexus is discarded as meaningful and instead a national tax scheme is being cooked up.

So to the religious right who slept with the devil and then got it up the pooper as a consequence we can add all those people dancing in the streets in glee — your turn to get in line and find that it comes long, dry and hard is on tap, and I assure you that the consequence will not be to your liking.

Both groups have made a grave mistake, and unfortunately the outcome may be similar to that in 1861.


Part II

None of you who have turned your avatar “rainbow” on Facebook appear to have actually read the Supreme Court opinion.

Why are you celebrating without understanding what you are celebrating?  Are you a thinking individual or are you a member of a mob?  If the latter, get the hell away from me; you’re dangerous, to be blunt, and I want you nowhere near my person or property.  To the extent I can do so I will distance myself from your person and behavior as both are destructive to both self and others.

Incidentally, if it matters, I don’t care who you sleep with.  Not only do I have many associates and people I like a great deal who are gay, I also have several friends who are polyamorous.

But let’s look at first the holding, and then the argument the court accepted in issuing it:

Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28.

Now from the opinion itself:

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.

(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way.

The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State’s Constitution guaranteed same-sex couples the right to marry. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to samesex couples,either through judicial or legislative processes.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.

In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

I could easily write the longest Ticker of my career as a writer simply by quoting these passages.  If you wish to go and look you will find 86 cited examples of the word “rights” in the opinion (and dissents.)

I need not do so; these are illustrative of the fact that the Opinion itself, and thus the court itself, lied, and you’re lapping it up.

A right is a thing that you inherently possess as a consequence of being human.  You have the right to free speech.  You have the right to freedom of religion.  You have the right to keep personal effects, such as papers and property, free from unreasonable search and seizure.  You have the right to personal property which may not be taken from you by the government without compensation at its fair market value.

At the moment any entity requires you to obtain a license you no longer have a right — you have a privilege.

The States assert that you may exercise the privilege of operating a vehicle upon the roads if you obtain a driver license.  The States assert that you may exercise the privilege of operating a business if you obtain a business license.  You may exercise the privilege of carrying a firearm in some states if you obtain a concealed carry permit (a blatantly unconstitutional requirement as the right to keep and bear arms is delineated in the Second Amendment.)  I may exercise the privilege of using many of the range lands around Eglin Air Force Base for recreational purposes if I first obtain a permit from Jackson Guard.  There are literally thousands of privileges that are all predicated on obtaining a license or permit and none of them are in fact rights, as a rightrequires no permission from anyone to exercise.

Note carefully that list of cites above.  You need no license to engage in sexual activity (such would be deemed outrageous on its face); that is one of your rights.  You also need no license to produce a child (unless you live in China, which recognizes no right to procreation!)

The Supreme Court had two options that would have actually addressed the complaints before it without doing what it did.  It could have responded to thesecond part of its holding only, specifically:

to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

That is Federalism.  It is also well within the Supreme Court’s remit and would address the issue in full as put before the court.  If you desired to get married as a gay person then you could travel to a state that allows same (much as many people do when they elope to Vegas) and the state you reside in, no matter which one it was, would have to recognize the lawfulness of your act.  This, incidentally, is why if you commit a crime in one state and go somewhere else that the act you undertook isn’t illegal the first state can demand (and will win) your extradition to stand trial; this is what Article IV Section 1 of the Constitution explicitly provides:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Respect for the laws of one State, however, does not compel the other State to pass the same laws.  This is why income and sales tax rates (and items to be taxed) vary, it is why speed limits vary among states, it is why building codes vary, it is why zoning varies, and it is why business license requirements vary.  So long as they do not implicate rights the States are free to form their own legislation, but they must respect enforcement of laws in other States where the conduct in question takes place within that other State, despite someone attempting to evade enforcement by fleeing the jurisdiction.

The other legitimate (and indeed logical) option before the Court was to find that since marriage is a conflation of and implicates a whole list of other rights that the entire process of “licensing” is facially invalid, striking “marriage laws” across the entire country.

Instead what the Supreme Court has legislated is the complete destruction of the entire list of alleged rights they have cited in their opinion!  They have reduced your right to cohabitate with, sleep with, procreate with and be intimate with to a privilege, and then have mandated that the States issue licensesto you in order to practice this privilege — but only to the extent that this privilege is extended to everyone else!

For this — the destruction by judicial fiat of fundamental human rights that have resided in each human being for thousands of years, reducing them to mere privilege which now can be revoked or limited, provided that everyone has to live under the same revocation, a huge part of this country cheers?

Government never arrogates to itself power it does not intend to use.  If you want examples of what turning marriage into a privilege, along with all the other “rights” attached that the USSC cited will turn into, look toward China where you need a license (permission) to have a child and will be denied permission for a second one, with varying sanctions applied if you do it anyway.  Interference of this sort in marriage and everything associated with it, so long as it is equally applied to everyone, was just made legal by this Supreme Court decision since we now have acceded to fundamental human rights being turned into privileges with their associated license.

If you are one of the people cheering this crap here is my response to you and your blatant and outrageous stupidity — indeed, your acceptance of andcheering for the largest single destruction of civil rights ever undertaken in the history of this nation:

Get off my lawn.

The Market-Ticker