Saturday, July 27, 2013

Playing Solomon

The recent Supreme Court decision striking down the heart of the Defense of Marriage Act (DOMA)was received like virtually all other decisions they make which is without real objection. Why should we ? Just that pesky Constitution having its way…right ?

I am reminded of a quote from Professor Frankfurter in a letter to President Roosevelt, who would later appoint him a Supreme Court Justice. “People have been taught to believe that when the Supreme Court speaks it is not they who speak but the Constitution, whereas, of course it is they who speak and not the Constitution.”

Are they in fact following the Constitution or are they simply playing Solomon?

In the DOMA decision the majority opinion stated clearly that supporters of conjugal marriage are motivated by bigotry or hatred — a sheer desire to “harm,” “demean,” or “humiliate” others. Justice Kennedy referenced thirteen times “dignity” as in loss of for proponents of homosexual marriage. Are these legal arguments rooted in the Constitution ?

Justice Alito in dissent stated correctly “The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.” Where are they getting this then ? They took the Fifth Amendment’s clause that says “No person shall… be deprived of life, liberty, or property, without due process of law.”

What does this “due process” mean ? It is rooted in the ancient Magna Charta and means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers via a fair trial. People could not be punished except by the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put up a defense. Due process of law refers only to trials - to judicial proceedings in courts of law. It does not involve judicial power to override Acts of Congress!

This was not a legal judgment---it was a moral judgment. This was not a dispassionate rendering of our great Constitution but five individuals usurping the legitimate role of what should be left to the representatives of the people. This win for a particular political objective is only a loss for our Republic. Solomon in his wisdom managed to give a disputed baby to the correct mother.The Supreme Court instead of giving the baby to the proper mother has only succeeded in cutting in half something precious—our Constitution.

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