My Take on SCOTUS Ruling

[TX_1824]

I haven't posted here in almost four years. That said, I feel compelled to share my thoughts on the recent SCOTUS ruling on gay marriage. I'm am older than most of the posters on this forum, if the demographics are the same, so I may have a different point of view than most. I know politically I stand in contrast to the majority. So that said, here I go.

The subject of gay marriage is not the issue that troubles me as I take a libertarian view on the subject. I personally don’t care what others do in the privacy of their own home. My concern is that the idea of self-government, as founded by the framers of our Constitution, suffered a potentially fatal blow.

The 10th Amendment specifically states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. In the case of gay marriage the people of the state of Texas decided that marriage should be between a man and a woman. That was the decision of the people of our state. Other states made similar decisions through the consent of the governed of that state. If Texas decided that it indeed wanted marriage redefined then who are we to argue the right of the people of that state to determine its future? Are we not a people who have the right to self-govern? What is the point of elective representation when the decisions made by that representative government are overturned by five non-elected individuals who have no fear of accountability? When the will of the people continuously gets usurped by an unelected body who governs outside of the frame for which it was created then that simply is tyranny in its truest form.

I look to a quote from Justice Scalia he made several years ago in an interview he granted. The Constitution, he stated, was not there to facilitate change. The Constitution is there to prevent change. If the will of the people is to enact change to the Constitution then we have an amendment process for such an act. Once the amendment is ratified by three quarters of the states it then becomes law. This is how change is facilitated. This is how the winds of change and cultural shifts should go about change. Not through judges but through the democratic debates and the amendment process. The judges are there to rule on Constitutional law, not to create new laws, new rights or new liberties. That is outside their Constitutional role. That is the job of the legislative, and to some extent, the executive.

So where do we go from here? Every great republic in the history of civilized government has fallen. The fall did not result from any external force. Their demise was brought upon from within. If our government continues down this road, if we continue to follow the precedent established this past decade or so, then our Republic, for all its history, will be just that. History. Over these past few weeks I often reflect on one of the most significant paragraphs ever written in American history. One that stirs the true spirit of ’76 in my soul and one every American should know. It can found in the preamble of our great Declaration.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

I pray for the resurrection of our republic and our representative government. I pray that there are still those in government who have the courage to speak out against the erosion of our form of government. I pray that our flag will not follow the other republics of history and remain ever unfurled in our great land.

Again, I state that the issue of gay marriage doesn't bother me. The judicial branch granting itself legislative powers gives me cause for concern. I care not for political parties. I personally despise most if not all. I just want to see representative government maintain through the means for which it was created.

[TX_1824]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

[TX_1824]

Were you equally outraged by the Citizens United Loving v. Virginia ruling?

No. In this case there was no equal protection under the law because the couple in question was not allowed to marry because of race. This was a clear violation of the law. I’ll jump to your next question before you have a chance to present, even though I believe it is off topic from the conversation that I presented, with regards to gay marriage or the redefinition of marriage. What is marriage in its basic secular, non-emotional setting? Two people entering into a consenting contract. Do gay people have this right? Should they have the same rights of power of attorney, inheritance and all other rights traditionally held my married couples in the traditional one man and one woman? Yes. Should states deny two people from entering into such a contract? No. Should states be able to define what marriage is? Yes, so long as it does not deny the rights of the individuals who enter into such a contract.

[TX_1824]

This is my own "prose" as you say. I referenced where appropriate. I'm too old to care about creating a sense of chest beating by "borrowing" the work of others.

My fear is that there is now a precedence set within our judicial branch of creating legislative powers within that branch. That is my underling point. Now courts can use previous rulings when a decision that may create new laws is passed down from the courts.

[TX_1824]

What is marriage in its basic secular, non-emotional setting? Two people entering into a consenting contract. Do gay people have this right? Should they have the same rights of power of attorney, inheritance and all other rights traditionally held my married couples in the traditional one man and one woman? Yes. Should states deny two people from entering into such a contract? No. Should states be able to define what marriage is? Yes, so long as it does not deny the rights of the individuals who enter into such a contract.

So are you essentially saying that the Court overstepped in saying that there is a Constitutional right to marriage, but that there is a right to enter into some type of civil unions with all the rights and privileges of a marriage contract that the states cannot deny to gay couples?

Essentially. My argument is that the courts have no standing on marriage. It is not addressed in the Constitution and thus reserved for the states to decide the matter. If we want the federal government to have a decision on what the definition of marriage is then go about the amendment process. If this case was presented to the court as an argument on property rights and the rights of individuals to enter into contract then I would agree with the ruling as the court has standing on such cases. Again, this is not an argument on whether or not gay marriage should be permitted. I’ve presented my feelings on that subject. I think we too often allow our personal feelings about a subject dictate our response to certain legal questions. The courts should turn a blind eye to emotional attachment and preside over cases based on Constitutional law. They should not change or invoke new rights or privileges. That is reserved for the legislative. A difficult process, I know, and one I struggle with everyday.

Do I feel that gay people should be allowed to marry? My personal opinion is, yes. However, my personal opinion has nothing to do with Constitutional law. That is one of the points I am attempting to make.

[TX_1824]

“In previous generations, that basis was the agreed upon idea that homosexuality was an immoral, sinful mental illness.  Some people still believe that and maybe you do.”

I would hope you would look to what I write and not assume my personal stance or beliefs in regards to homosexuality. I’m attempting to make a case apart from emotional charges. However, since you approached the subject I will reciprocate. As stated in my last statement I believe homosexuals should be allowed to marry. I do not believe homosexuals have a mental illness. I haven’t even established my personal sexuality in the discussion. What people do in their own private lives is their own business and not that of mine, yours, the government or any person or entity not directly affected by such a relationship. I have no say or interest in who someone loves. That is my emotional response and one I have attempted to avoid.

I have been waiting for the “separate but legal” argument. I was born in 1956 in Crown Heights. My mother is from Mississippi and although I grew up in NYC I would often go south to visit family. I understood what separate but equal meant. I remember white and colored only bathrooms. I viewed segregation in all its hatefulness. I am also Jewish and the son of a Polish immigrant who survived the horrors of Nazi Europe. I witnessed the ugly side of hate. That said, I don’t believe that the “separate but equal” argument applies to this justification.

As stated previously, I do not believe states should limit property rights and other rights to couples based off of sexual orientation. If the case was brought to the court based on this fact then the 14th Amendment would apply. The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

With the changing of opinions regarding same sex marriage do I believe demographics will change? Yes. The country is moving towards a more accepting stance on marriage. We still, however, must honor the system of government we have in place. We are still a representative government and that should never be abandoned for political expediency.

[TX_1824]

The argument was do states have the right to define marriage? In this case there is no answer provided by the Constitution. As a result, the court should have sided with the 10th Amendment with regards to the definition of marriage.

That's completely faulty reasoning.  Do you also disagree with Brown v. Board because the Constitution doesn't mention public schools?

The 14th Amendment applies to everything a state does.  The 14th Amendment is the Supreme Law of Texas and every other state.

I can’t argue with Brown. That was definitely ruled correctly and supported by the 14th amendment. In this case students were denied access to certain schools because of the color of their skin.

What we are talking about is the definition of an institution. Again, this is not addressed by the Constitution and must fall under the 10th. If the argument is, “I don’t like the 10th amendment and states’ rights should be abolished” then let us make that argument in another post and discuss repealing that specific amendment. There is precedent on repealing an amendment that no longer applies to the country at present. If you want to argue the Supremacy Clause then let us do that as well. However, there is no conflict between state law and federal law so the 10th amendment has to apply. It can’t be ignored while it is still on the books. 

[TX_1824]

Were you equally outraged by the Citizens United ruling?

I have no problem with criticizing government and don't support the BCRA. We, as a citizenry, have the right to be critical of government and those that place themselves in the public light. We should not be limited by arbitrary days before an election to discontinue the discussion; fair or unfair and regardless of party. Hopefully the electorate will do its own research and make an informed decision when voting and not be persuaded by platitudes. Unlikely, but my opinion. Any limitations on free speech by either party or political persuasion should be immediately be shunned. For example, there is a plan by a group to burn an American flag by a protest group in New York shortly before the 4th of July. I served in the Nave shortly after our involvement in Vietnam. I disapprove and find the act abhorrent. That said, I support their right to exercise their free speech and their right to petition the government even if I disagree with their message.

In other words, you're OK with the SCOTUS overriding existing legislation and going against the will of an overwhelming majority of citizens when you agree with the decision, but you're against doing the same thing when you disagree with it. Thanks for clarifying.

You're welcome.