-In my post yesterday, Poove And Marriage, I decided not to address the arguments before the Supreme Court on California’s Proposition 8 until I had listened to and read the analysis of people I respect, like Mark Levin and Ed Whelan, and had spent sufficent time in contemplation of the issues involved.
I believe Mark Levin is right in his opinion that this is not a matter that concerns the Federal Government and, therefore, the SCOTUS should vacate the decisions of the Ninth Circuit Court Of Appeals and of the U.S. District Court [ie: all of the decisions made by the courts of the Federal government].
The national government is not allowed to interfere in such matters as marriage and abortion; they are are not among the enumerated powers granted by The Constitution. As Mr. Levin emphatically stated on his radio show last night: ‘No federal jurisdiction – period’.
Marriage is not mentioned directly or indirectly in The Constitution, therefore, the Tenth Amendments rules in this case.
The Tenth:
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.
This is matter for the Several States and/or the people who reside in those States.
And within each state, the people decide whether or not it is an issue for their state government to concern itself with; they do so through their State Constitution.
If the SCOTUS takes any action other than the one mentioned by Mark Levin, then they will have overstepped their authority under The Constitution and, therefore, I believe, the Several States will be under no obligation to obey the decision. It is imperative that the States begin resisting the Tyranny of the national government [they have begun to do this on other issues, thankfully]. For sixty-plus years we have been subjected to abuses and usurpations courtesy of the Federal Courts. They must be resisted with just as much determination as we resist the Executive and the Congress.
-Throughout the history of the ‘gay marriage’ laws, judicial decisions, and ballot questions, the Full Faith And Credit Clause of The Constitution has been frequently mentioned by the pro side.
Article IV, Section 1 reads, in full:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.
A quick reading of this clause could easily lead one to think that a ‘gay marriage’ allowed and performed in one state [say, Massachusetts] would have to be accepted and respected by the government of another state.
As Mark Levin points out, this is not how the Clause has been interpreted. From the SCOTUS Opinion, delivered for the Court by Justice Stone, in Pacific Employers Ins. Co. v. Industrial Accident Commission [306 U.S. 493 (1939)][emphasis mine]:
It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. See Wisconsin v. Pelican Insurance Co., 127 U.S. 265 , 8 S.Ct. 1370; Huntington v. Attrill, 146 U.S. 657 , 13 S.Ct. 224; Finney v. Guy, 189 U.S. 335 , 23 S.Ct. 558; Milwaukee County v. White Co., supra, page 273 et seq., 56 S.Ct. page 232 et seq.; see, also, Clarke v. Clarke, 178 U.S. 186 , 20 S.Ct. 873; Olmsted v. Olmsted, 216 U.S. 386 , 30 S.Ct. 292, 25 L.R.A.,N.S., 1292; Hood v. McGehee, 237 U.S. 611 , 35 S.Ct. 718; cf. Gasquet v. Fenner, 247 U.S. 16 , 38 S.Ct. 416. And in the case of statutes, the extra- state effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.
…
Full faith and credit does not here enable one state to legislate for the other or to project its laws across state lines so as to preclude the other from prescribing for itself the legal consequences of acts within it.
To require a state to recognize and be compelled to enforce the laws of other states would allow one state [say, Massachusetts again, or New York] to pass laws that are binding on the whole country. This would destroy the federalism enshrined in The Constitution, which decrees that the Several States shall act as a check and provide a balance to the national government. Further, it would violate Article IV, Section 4, the relevant part which reads:
The United States shall guarantee to every State in this Union a Republican Form of Government…
To have a republican form of government, the people under it must be able to determine what said government is allowed to do though their Constitutions and, through their elected representatives, be able to determine what laws they will live under.
-Ed Whelan makes a very good point:
Proposition 8 defines an inherent element of what marriage has forever been in California. It no more “bans” “same-sex marriage” than a proper definition of a circle bans square circles. Rather, under Proposition 8, the concept of “same-sex marriage,” like that of a square circle, is an oxymoron, a self-contradiction, an absurdity—just as it has always been under California’s marriage statutes and, until very recently, everywhere for as long as marriage has existed.
The advocates of ‘gay marriage’ want us to turn away from our direct view of the world and look at it through a funhouse mirror.
Or, if I wanted to be a bit crude, I could say: the morons want us to believe in an oxymoron.
-Over at Bench Memos, Hadley Arkes offers this spot-on analysis and conjecture:
…The question is whether one form of marriage is in principle preferable to any other. Marriage finds its coherence as a framework of legal commitment to envelop the begetting and nurturing of children. It is built on the natural complementarity of men and women; that purpose marks the reason that there will always be . . . men and women, because of reproduction, or begetting. If marriage is detached from that central function, and those anchoring facts, what ground of principle would confine it to a relation between two people? What of those people who say that their loves are not confined to a coupling, but woven into an ensemble of three or four, or more?
There was a moment critically missed, then, when Justice Scalia invited Charles Cooper, arguing for traditional marriage, to draw out some of the “concrete” and worrisome results that could spring from these changes with regard to children. To venture an answer here is to make a prediction or conjecture. But there was no need for predictions and conjectures: By some estimates there are about 500,000 “polyamorous” households in the country. The day after the Court installs same-sex marriage, we are virtually certain to see in court one or more of these people, insisting that their loves be honored with the name of “marriage.” They too will seek the “equal protection of the laws.”…
Bet the house on it. You know the Left will continue to be relentless in their mission to destroy American Society. Polyamory is most likely to be next and then, I think, pedophilia in stages.
Methinks Mr. Arkes’s predictions will end up being as prophetic as Justice Scalia’s in Lawrence v. Texas back in 2003:
…State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
And they have been. And the pace will not slacken.
UPDATE at 1951…
-The Right Scoop was kind enough to transcribe part of what Mark Levin said on his radio show last night. A highlight:
‘So Mark, what should the court do?’
In my humble opinion, the court should strike down the 9th Circuit Court of Appeals decision, and through it the district court’s decision in San Francisco. And the court should say:
‘We have no business in this case. The people of California voted, they passed Proposition 8 to amend their constitution. Maybe in ten years they’ll pass another proposition to reverse course. But there’s no federal constitutional violation here. This is not the same as segregation and racism. This is not a matter of equal protection.’
Please do take the time to click here and hear the audio.
-TRS also has what Senator Ted Cruz said on the matter here.
-Jeff Goldstein weighs in over at his place. A highlight:
In states that voted to recognize same-sex unions as marriage, those unions should be recognized as marriage — despite my belief that the voters of those states made the wrong decision from the standpoint of what they’ve opened themselves up to by way of future legal challenge. But states that don’t wish to re-organize the composition of thousands of years of traditional marriage merely to grant homosexuals leave to assume a label that voters of those states don’t wish to surrender (going under the valid assertion that what has never been marriage is not suddenly marriage simply because some interested group wishes it to be so) should not be compelled to do so by 5 or 6 citizens in robes.
Part of the beauty of the federalist system is that states can hold different corporate views, and that American citizens are free either to convince voters of their state to adopt a different position, or else to move between states to find those states that better match one’s own beliefs.
The voters of California followed the proper procedure and made their wishes known. You may disagree with their wishes, and disagree with the policy. But how you get there matters.
Rewriting the Constitution at will, or reworking the role of Justices to bring about social change, is anathema to a representative republic. And those who support such activism — regardless of where they stand on the policy issues — can lay no claim to being either classically liberal or constitutionalists.
Indeed, how you get there, whether you follow the approved procedure, matters an awful lot. For, if you usurp the procedure, if you get to an end by any means necessary, you delegitimize the whole system. And then you have rule by whim or, as it is more commonly called: Tyranny.
