Same-Sex Marriage Threatens Judicial Imperialism

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Investors.com:

Liberty: Settling questions it deems too big for the voters is not the Supreme Court's job. On delicate issues like race and family, the justices — liberal and conservative alike — are obliged to trust the people.

The mad rush to transform marriage, which has inevitably landed into the laps of the nation's nine highest-ranking arbiters, must be viewed in the context of cultural history.

In the last half-century American society has undergone nothing less than a social revolution.

The left would have us believe this upheaval bubbled up from the masses, but most of the radical change was handed down from on high by elites — in Hollywood, the press, academe, and, not least, the legal profession.

To take one area, censorship of word and image, the hard-charging attorney who in the '50s and '60s litigated smut into art, Charles Rembar, 45 years ago admitted that First Amendment protection of sexually explicit materials was something very new."In 1956 the concept did not exist at all," Rembar pointed out in his 1968 book "The End of Obscenity." But "in 1966 it was full grown and dominant, and turned a hard hand against censorship," he reported.

It was done by the courts, not by elected lawmakers. Just as there was no majority in America in the '60s demanding constitutional protection for pornography, and no majority in the '70s pining for abortion-on-demand, there was also no majority in 2003 demanding the right to marry for homosexuals. In that year, Massachusetts' highest court declared there was no rationale "for denying marriage to same-sex couples."

 

[Valin]

Investors.com:

 

Liberty: Settling questions it deems too big for the voters is not the Supreme Court's job. On delicate issues like race and family, the justices — liberal and conservative alike — are obliged to trust the people.

 

The mad rush to transform marriage, which has inevitably landed into the laps of the nation's nine highest-ranking arbiters, must be viewed in the context of cultural history.

 

 

Morning Bell: Don’t Stop Religious Debates

Amy Payne and Jennifer Marshall

March 29, 2013

 

There’s a heated debate going on in this country about marriage—and at times, it’s less than civil.

 

Heritage’s William E. Simon Fellow, Ryan Anderson, faced a verbal firing squad on Piers Morgan Live this week, as Morgan and guest host Suze Orman told him that he was one of the few people “still” holding a traditional view of marriage between a man and a woman.

 

Obviously, that’s not true. Citizens of 41 states continue to affirm marriage as it has been through history, and thousands joined the March for Marriage in Washington, D.C., this week to attest to the fact.

 

But emotionally charged discussions can be uncomfortable—even if you’re not on national television. To foster reasoned debate, The Heritage Foundation and other allies have produced a booklet that explains why maintaining the definition of marriage matters for children and for limited government.

 

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On Gay Marriage, Moderation Could Be Disastrous

Noah Feldman

Mar 28, 2013

 

Conventional wisdom formed quickly this week after oral arguments in the two same-sex marriage cases before the U.S. Supreme Court. The gist is that the court would duck the fundamental question of whether the Constitution guarantees everyone the right to marry -- implied in the California Proposition 8 case -- and strike down the Federal Defense of Marriage Act on the limited ground that it interferes with states’ rights.

 

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Justice Anthony Kennedy, the perennial swing voter, might well prefer some gradual way to introduce gay marriage without producing the headline “Court Grants Gay Marriage.” But the problem with this gradual strategy envisioned by court observers and attributed to Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation. Instead of attenuating criticism of the court by avoiding a single “Eureka” moment, the court would put itself, along with lower courts, at the center of hundreds more headlines for years to come. And they would all be of the same ilk: “Court Creates Legal Nightmare; Citizens on All Sides Angry.”

 

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To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

 

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Some scenarios are downright funny. Suppose I married someone of the same sex in New York and that marriage wasn’t recognized in Pennsylvania. If I then decided to marry someone of the opposite sex in Pennsylvania, the state would presumably recognize that marriage while New York recognized my previous one. And both marriages would be recognized by the federal government, which would treat me as a lawful bigamist. That would be good news for 19th century Mormons, who were denied a federal constitutional right to plural marriage -- but most people today would find the conclusion truly bizarre.

 

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