The Same-Sex Marriage Issue Again: The Supreme Court Is Not So Supreme

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by Scott Lazarowitz Reason and Jest

Recently by Scott Lazarowitz: The 22-Year Bush War of Aggression on Iraq

     

This past week the U.S. Supreme Court heard arguments on two same-sex marriage cases: California's voter-approved Proposition 8, which changed the state constitution to eliminate the state-recognized u2018right' (i.e. state-granted privilege) of same-sex couples to marry; and regarding the 1996 federal Defense of Marriage Act, which defined marriage as only between one man and one woman, and which restricted federal benefits and inter-state marriage recognition to only opposite-sex marriages.

The arguments and Justices' questions in these cases showed that the laws that legislators (and voters) make are more and more confusing, intrusive and nonsensical, in my view.

In these arguments, the Supremes expressed doubts as to the high court even having jurisdiction, as well as whether the cases had legal standing for review.

In arguments involving the California case this week, the Justices seemed to express doubts as to whether they even wanted to bear the burden of deciding the equality of homosexual couples.

As George Washington University Law Professor Jonathan Turley commented, "Indeed, they looked like so many elderly drivers in Florida driving slowly on the highway with their turn signal on, looking desperately for an off-ramp."

Sadly, our society, state legislatures and Congress are filled with many slow drivers with their turn signals forever on and never turning. Turley is correct in observing that the clueless court clucks seem disoriented, as these cases shouldn't be too difficult to decide, in my view.

Perhaps the overpaid highly-paid Justices have more important things on their minds, such as what temperature at which to set their bubble baths later on, and so forth.

However, in the past Turley has suggested that the U.S. Supreme Court should be expanded to perhaps 19 Justices.

Hmmm. Will that really solve the conflicts which arise in our society? (No, I think that perhaps 49 or 149 Justices might be better. Or even 535, if you get my drift.)

So just recently, Nullification author Thomas Woods has been taking some jabs at how some people in America view the U.S. Supreme Court as the Ultimate Decider:

If the peoples of the states created the federal government and its subdivisions as their agent, how do they permanently lose the ability to stop their own creation from destroying them? Since when does the agent tell the principals what its powers are?

To say that the Supreme Court must decide constitutionality in the last resort is to beg all the relevant questions. To say that the Supreme Court has itself decided that it must be this arbiter is to take question-begging to quite an extreme. How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it? As Madison explained in 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

But what ever happened to freedom in America? Has that ever existed here? Why is it that a population of supposedly free people must seek the guidance of government-appointed bureaucrats to decide whether or not certain relationships or contracts are officially recognized by the State? Or approved by some government bureaucrat? And who the hell are the State and its bureaucrats to give their recognition or approval of private relationships and contracts?

Actually, marriage was essentially a private matter until around the 18th Century.

As LRC columnist Ryan McMaken wrote, the State got into the marriage business because the statists couldn't bear the thought of contracts being transferred without the State's intrusions and thefts. And it also has to do with control. The bureaucrats of the State love control.

So besides whether these same-sex marriage cases have legal standing before the high court, some of the Justices had expressed concern as to whether these issues should really be left to the states to decide.

But when the high court refers to "the states," they really mean the states' governments, the state legislatures and state courts should decide the outcomes of these cases. Really, we're talking about politicians, bureaucrats, and government-appointed state court judges.

Sorry. But our liberty and the rights of the individual should not be dependent upon the whims of politically-appointed bureaucrats on courts, or even elected representatives in legislatures. Then, you are not talking about rights or liberty, you are talking about state-granted privileges.

And the Supremes often decide cases on the bases of the conflicts between the rights of the individual and "compelling State interest." Or "balancing the rights of society as a collective against the rights of the individual." Again, in this case we are then not talking about "rights," but state-granted privileges.

But society or the collective does not have "rights," only individuals have rights, and they are inherent rights which pre-exist any governments. There is no compromise that can be made here. If there is a compromise, then the individual really doesn't have rights.

And when there is compromise of the individual's rights, there is no liberty.

But, alas, America has degenerated from a liberty-loving population following the Revolution to one in which the political process is used for some people to impose their will and way of life onto others.

So it's always something, as Roseanne Rosanadana used to say. Either the voters of California do not believe in the rights of the individual to life, liberty and the pursuit of happiness, or the U.S. Congress wants to define how certain private relationships and contracts must be by law.

And as more amongst the population are increasingly confused about liberty and rights, so are these "Supreme" Justices in Washington.

Now, were I a Supreme Court Justice (and obviously I am not, nor will I ever be, nor would I ever want to be, nor do I think that such a body of Ultimate Deciders has any real legitimacy or moral standing in a free and just society, but I digress…), I would say that it doesn't matter whether the California Proposition 8 case has legal standing — of course not. And if I had to adhere to the extremely flawed and unjust U.S. Constitution, I would say that the First Amendment protects the individual's right of freedom of association, and the Ninth Amendment — something which the late Judge Robert Bork compared to an "inkblot" — protects the rights of the individual not enumerated in the Constitution's Bill of Rights.

I would then give examples of rights not enumerated in the Bill of Rights, including the right to establish voluntary contracts with others, contracts the terms of which are really the matters of those parties involved, and not the business of any third parties, be they one's neighbors, the majority of voters of Commie California, Moral Majority hacks activists, state legislators, or court judges. And those contracts include in matters both personal and economic. (Why in the alleged 21st Century are we even debating these issues?!)

And, regarding the Defense of Marriage Act case, of course that's "unconstitutional," because no where in the Constitution does it authorize Congress to define or interfere with the personal relationships and contracts of the people of the United States.

I know, I know, there are those out there who desperately search the U.S. Constitution in its every detail, hoping to find some word or phrase they can use to justify their own selfish impositions of their way of life onto others, but whatever.

If homosexuals want to be married and have a legally-binding contract, then that is their right as human beings. The Defense of Marriage Act and the California voter-approved law violate those fundamental human rights.

So, it comes down to this: We really have to decide as an evolved, civilized society who owns the life of the individual.

There is collective ownership of the individual, or there is self-ownership.

There cannot be anything in between. No "shared" ownership of the individual's life between the individual and the society in which one lives. That's nutso.

And you really can't have liberty without the society's recognition of the individual's right to self-ownership. In fact, the entire rule of law and the idea of civilized society is based on this, in my view, and self-ownership's pal, the non-aggression principle. At least, that's how I see it.

The anti-same-sex marriage advocates are really saying that they as a majority of society (and as enforced by the almighty State) own the life of each individual, as well as other people's private contracts. Otherwise, even if they disagree with the kinds of private, voluntary contracts which other individuals want to have, the majority of meddlers and intruders are really obligated to buzz off, or "MYOB!" (which is a phrase we no longer hear in the People's Republic of Amerika now).

And to complicate matters, many of these cases are to do with government benefits, such as in the case of death of spouses, divorces, etc.

But there should be no such thing as "government benefits," which are redistributed from other members of society whose earnings and wealth are seized from them involuntarily, through coercion or threats of violence. Once again, how can the society call itself "civilized" while simultaneously implementing such dishonest and immoral schemes?

And people are worried about the children whose parents are homosexuals. But what about the many, many children for generations and centuries, raised by heterosexual parents, who were beaten, humiliated and brutalized as part of their upbringing? Such cases are still widespread in our society. Things haven't changed much there. What about them? (And no, I'm not saying that the heterosexuality of those abusive parents had anything to do with their abuse!)

And I can't believe the ignorance I am hearing on talk radio. People are actually concerned that, "if we allow gays to marry, then more and more people will be gay and marry one another, there will be no more heterosexuals to reproduce the human race!"

Well, the many surveys which have been done on the percentage of homosexuals in society have ranged from 1 to 20%, so it probably has always been around 10% or so.

Despite the Left's encouraging homosexuality in the government school curriculum and pop culture for decades, I don't think that that or the legalization of same-sex marriage in some states has changed that general percentage, or ever will.

But it is sad that so-called conservatives and traditionalists feel this compulsion to immorally use the armed power of the State as a means of social engineering (what are they, leftists?) to force their way of life onto others. A healthy society — which ours isn't, not by a long shot — really values procreation without State-enforced social engineering and legal compulsion to do it.

So to conclude, it really is a mistake to rely on the U.S. Supreme Court for answers to any issue, certainly not the same-sex marriage issue.

I really thought that the U.S. Supreme Court's 2005 Kelo eminent domain ruling was the straw that broke the camel's back as far as the Court's legitimacy as Ultimate Decider was concerned.

Then, last year the Supremes decided in favor of the ObamaCare mandate, with Chief Bureaucrat John Roberts declaring that the mandate was a "tax," even though its proponents weren't even arguing that it was a tax.

The Court's self-delegitimizing was at that point a matter of settled law, in my book.

Scott Lazarowitz [send him mail] is a writer and cartoonist, visit his blog.

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