Supreme Court gay-marriage decision foreshadows difficulties

The Supreme Court has spoken on the issue – can homosexual couples marry?

 

The Constitution does not even mention marriage, let alone between gays, but by finding a so-called penumbra (not the astronomical kind, but the obscure, cloudy, vague type) in the Constitution’s 14th Amendment, it discovered that such couples had a constitutional right to marriage.

Some background is helpful.

In scientific circles, it is considered unfair or unethical to accuse a colleague of bias while engaging in occupational discourse. Besides, bias is irrelevant to the validity of a logical argument, and to the relevant experimental evidence, provided the experiment can be duplicated by a third party. But this ban does not carry over into legal circles.

So when a jurist wants to arrive at a desired conclusion – say, that certain citizens have specified rights – and cannot find such rights explicitly stated in the Constitution or its amendments, the jurist doesn’t just give up. His bias allows him to search for a clause, a phrase or a context in these documents that allows him to infer that the right is implied.

Such penumbras do not grow on trees – they must be diligently searched for. To find one, it helps the jurist to be motivated, driven – and biased?

 

Justice Anthony Kennedy, the author of the majority gay-marriage opinion, found his prized penumbra in the Constitution’s 14th Amendment, which provides that citizens are guaranteed equal protection of the laws. So if homosexual couples want to marry, they have the right to do so.

Unfortunately, mere assertion of this statement, which in logic is called a conditional statement, does not, in itself, constitute formal proof of it. As a matter of fact, the assertion falls far short of being a rigorous, compelling proof and thus subjects the argument to controversy. Of course, standards of proof are less stringent in a court of law than in other professional areas.

Whether homosexuals should have the right to marry is a political issue and best left to our legislative processes to work out. Indeed, at least 11 states already have enacted legislation supporting, to varying degrees, such marriages. This is representative government, not the judicial usurpation of the people’s power as reflected by the current court’s action.

Indeed, this court’s action marks another judicial power grab, carrying us further from representative government.

 

It is sad to cynically observe, but literally true, that whenever the court is seeking more exclusive power, it often looks for another penumbra. The reader may ask: Is this penumbra approach legal? Since the court itself is the final arbiter of such questions, we leave the reader with the task of answering his query.

The decision commands non-homosexuals to alter their values, values that are, to varying degrees, morally-, faith- and religious-based, and some that are explicitly protected by the Constitution, as well as by traditions stemming from an array of global cultures that date back to the origins of antiquity.

This rich, worldwide history of traditional marriage merited hardly a shrug from the court’s majority bloc.

One might humbly ask Justice Kennedy, and members of the majority, to identify a way (a penumbra perhaps) that would permit people, not the court, to decide this overwhelmingly important issue. As it stands, the court is weakening, if not eliminating another pillar of our representative government.

 

This action does not mark the first time the Court has employed the gambit. It appears more often, however, when a jurist deems an issue to be of crucial importance. And in the current case, finding and sweeping homosexual rights under the scope of federal power, and denying jurisdiction over those rights to the states, was deemed of great importance to Justice Kennedy and of course, the majority bloc.

Amid the fallout of the Kennedy opinion there lingers a dark harm that will bear heavily on some individuals, organizations and especially religious faiths. They risk becoming open to charges of discriminating against homosexuals.

The 14th Amendment now becomes a legal weapon. And there are a number of prosecutors eager to advance their careers on the tailwinds of this decision. They will latch on to the numerous homosexual anti-discrimination enactments waiting to be applied to unsuspecting victims.

While this overall subject has been mentioned by others (see William McGurn’s op-ed, The Wall Street Journal, June 30, 2015) it bears repeating.

 

This is not all. Justice Kennedy in his majority opinion stated a need to provide dignity to people who are currently being discriminated against – i.e., a penumbra is discerned to reinforce a primary penumbra. Where is there a constitutional protection for a right to dignity?

Offending one’s “dignity” may be unethical or offensive, but unconstitutional? As the basis for unending litigation and the discovery of further unexpected rights, this innocent comment is bound to be seized by those alleged to be “sensitive” to the myriad remarks offered by the “insensitive.” What a can of worms!

But of even greater significance is: How much added judicial power do jurists gain with the new penumbra apparently firmly in hand? Quantitatively, it must contribute immensely to their inventory of means to gain power and, by denying states the ability to govern in their domains, puts another nail in the coffin of representative government.

Ironically, because application of this gambit effectively preempts Congress from acting on the issue, it substitutes judicial rule for legislative action, providing still another seal for a final resting place of our representative government.

 

(The writer is a professor emeritus of financial economics at the University of Georgia. He lives in Aiken, S.C.)

 

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