Tuesday, April 28, 2015

The Kangaroo Court

The issue before the supreme court is not about 'gay marriage;' it is about whether a constitutional framework allowing people to live under the laws they create in their respective states will survive. It's about letting Californians have 'gay marriage' and letting North Carolinians choose a definition of marriage that, in the words of Justice Kennedy (the court's swing vote), “has been with us for millennia.” Ironically, it's all about diversity.

Chief Justice John Roberts' point that he has been unable to find a definition of 'marriage' that did not define it as between a man and a woman ("You are not seeking to join the institution. You are seeking to change the institution.”) aside, the real question before the justices is whether they are a legislature or a court. That is, whether the states must APPLY their laws equally to all; or whether one court will rule for the entire country on what those laws should be. If civil laws defining marriage between a man and a woman are an affront to the 'equal protection' clause of the 14th Amendment because they discriminate against gays, then it is surely true that laws banning the use of drugs, prostitution or usury surely discriminate against addicts, hookers, and loan sharks. Consequently, those laws are unconstitutional and also must be struck down.

Of course, no one has ever suggested that, regardless of whether those regulations are a good idea or not. These issues, like family law and marriage, are left to the states to determine in this republic of ours. The genius of the framers was in large part humility: they simply realized they didn't have all the answers and a that a one-size-fits-all dictate from the central government would allow no room for error. On the other hand, if these 'laboratories of democracy' known as the states got it wrong, why folks at least could vote with their feet and leave one for another. (For much more on this, see "Power Divided is Power Checked" at http://www.amazon.com/Power-Divided-Checked-Argument-States/dp/1935098500.)

The entire issue is especially acute for Anthony Kennedy, whose sympathies to gay rights are widely known. Indeed, when he was the deciding vote in United States vs. Windsor striking down a section of the Defense of Marriage Act (DOMA) which prohibited federal benefits for gay couples, he declared that DOMA intruded into an area “central to state domestic relations law applicable to its residents and citizens." We'll soon find our whether Justice Kennedy was really serious about the vertical separation of powers, i.e., federalism, or whether he stands as the swing vote in a Kangaroo Court.

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