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The Supreme Court decision on marriage, as Justice Antonin Scalia wrote in his dissent, "is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere 'primary' in its role." Scalia added, this role would have been unrecognizable to those who wrote our Constitution. They knew the dangers of "primary" power and that's why they divided power into three branches of government. The Court ignored the majority vote of the people of 31 states, and ignored the fact that the traditional definition of marriage is enshrined, either by statute or state constitution, in 38 states. Not only were the Court's decisions wrong but, as Scalia wrote, the Supreme Court had no power under the Constitution to invalidate those two democratically adopted laws, the Defense of Marriage Act (DOMA) and California's Prop 8. California passed Prop 8 in a ballot initiative procedure designed to enable the people to correct public officials' actions that are not acceptable to the people. After the California state supreme court upheld Prop 8, the same-sex-marriage advocates ran to supremacist federal judges to overturn the voters' wishes. The other marriage case decided by the Supreme Court declared DOMA unconstitutional, thereby substituting a judicial edict for the will of our elected representatives. DOMA was passed by Congress in 1996 by large bipartisan majorities and signed by President Bill Clinton. Justice Scalia was scathing in describing the failure of the Court to identify any basis in the Constitution for its conclusion that DOMA is unconstitutional. Scalia criticized Justice Kennedy's "nonspecific hand-waving" about equal-protection, substantive due process, and federalism, but appeared to say that the principal basis for Congress enacting DOMA was its supporters' "desire to harm a politically unpopular group." Speaking for the Court's majority, Justice Kennedy accused DOMA supporters of acting with malice, with the purpose "to disparage and to injure" same-sex couples, to "impose...a stigma," to deny them "equal dignity," to brand them as "unworthy" and to "humiliate" their children. All that is obviously false. Scalia expressed shock about the way Kennedy bolstered his argument with malicious slurs on the Members of Congress who voted for DOMA. As summed up by Scalia, Kennedy laid down his edict, "Hate your neighbor or come along with us." That kind of insulting argument should be out of bounds for the Supreme Court. Let's recall how Abe Lincoln responded to the Supreme Court's historic mistake, the Dred Scott decision. The Court ruled that a man must be protected in his constitutional property right of owning his slave, Dred Scott, even when they traveled to Illinois, a free state. Lincoln warned that if we allow policy on vital questions to be irrevocably fixed by the Supreme Court, we will no longer be a self-governing people but merely subject to "that eminent tribunal." |
