SCOTUS, Marriage, and “Raw Judicial Power”

Forty years ago the Supreme Court of the United States engaged in “an exercise in raw judicial power” as dissenting Justice Byron White put it in regards to the abortion decision, Roe v Wade. Yesterday SCOTUS basically did the same when it comes to marriage. SCOTUS is really a law unto itself: instead of carefully interpreting the law it is now radically re-interpreting and creating the law.

And as dissenting Justice Antonin Scalia rightly said, it never should have been involved in this issue in the first place. But it has, looking at two issues about marriage: DOMA (the Defence of Marriage Act) and Prop 8 (California’s Proposition 8 ruling on marriage). The outcome? Said Scalia, “This case is about power … it is about the power of our people to govern themselves, and the power of this court to pronounce the law.”

Although SCOTUS did not come out and say “We now can have homosexual marriage” it did open the door greatly to that, especially in its DOMA ruling. It argued that DOMA is unconstitutional, while stating that Prop 8 effectively has no legal standing. I link to two articles below which go into these decisions in some details, but I like the way Robert A. J. Gagnon has summarised things, so I defer to him:

“Let’s be honest: Today’s decisions of the Supreme Court of the United States, rendered in two close 5-4 votes, is a serious body blow to the natural definition of marriage as a union of one man and one woman and to the rule of law generally. It is true that the result could have been worse: SCOTUS did not rule in favor of ‘gay marriage’ across all 50 states. Nevertheless, it did provide an irreversible toehold of ‘gay marriage’ on federal and state governments.

“In one decision (Hollingsworth v. Perry) the Court made the ludicrous ruling that a group of citizens representing California’s Proposition 8 (a 2008 citizen-initiated constitutional amendment to define marriage as the union of a man and a woman that passed by a 52.24% of the popular vote) had no standing to defend it before SCOTUS when the governor and attorney general of California refused to do so. This ruling rewards the state executive branch for abdicating its constitutional mandate. It means that the legal will of the people can be thwarted by the conspiracy of a single Chief U.S. District Court judge in a homosexual relationship (Vaughn R. Walker, who ruled in 2010 that Prop 8 was a violation of the U.S. Constitution), a 2-1 decision by the left-wing U.S. 9th Circuit Court of Appeals, and a left-wing state executive branch that violates its duty to defend the law of the land.

“In the second decision (United States v. Windsor), the Court made the equally ludicrous ruling that the U.S. Congress has no right to define the word ‘marriage’ in the national policies and laws that the federal government enacts but must be dictated as to the meaning of the word by each and every individual state. In striking down Section 3 of DOMA (the Defense of Marriage Act), SCOTUS nullified an act passed by an overwhelming bipartisan majority in the U.S. Congress in 1996 (342-67 in the House; 85-14 in the Senate). True, SCOTUS did not strike down Section 2 of DOMA, which allows any given state not to recognize ‘gay marriage’ in other states as valid within its own borders.

“Eventually, of course, SCOTUS will rule that it is unconstitutional for the federal government to grant marital benefits to homosexual unions in some states but not in others. The irony will likely go over the heads of the five justices that voted for this monstrous ruling: (1) SCOTUS strikes down a uniform federal policy against recognizing ‘gay marriage’ in order to (2) set up a situation where the federal government observes ‘gay marriage’ only in those states that legislate it, leading to (3) a future ruling by SCOTUS that there must be a uniform federal policy in favor of recognizing ‘gay marriage.’

“In effect the U.S. Supreme Court has ruled that men and women are as much sexual complements or counterparts to their own sex as they are to the only other sex, anatomically, physiologically, psychologically. The height of moral and legal absurdity.”

Yes, five out of nine men are deciding for an entire nation how we should understand marriage. Marriage as an institution of course predates the institution of the state. Yet now we have activist judges basically saying that the state can now redefine marriage according to its own worldview.

Al Mohler has also penned a commentary on this and is worth citing as well: “It is virtually impossible to exaggerate the future impact of the DOMA decision, but it is not yet a new Roe v. Wade. Instead, it sets up a future legal challenge from any citizen in any state that does not have legal same-sex marriage. The Court’s decision in that future case, surely not long in our future, will be the new Roe v. Wade – a sweeping decision that would create a new ‘right’ that would mean the coast-to-coast legalization of same-sex marriage. Today’s decisions do not take us there, but they take us to the precipice of that sweeping decision. That is especially true of the DOMA case…

“While the immediate effects of the striking down of DOMA’s federal definition of marriage are not specifically clear, it does mean that the federal government will now be required to recognize any same-sex union declared to be legal in any state, extending full recognition and extending all federal marriage benefits to that same-sex marriage. The Obama Administration will have to make a myriad of decisions about how this is to be done. Interestingly, this will put President Obama, who last year ‘evolved’ into full support for legal same-sex marriage, on the hot seat once again.”

At least we had some common sense and some mental and moral clarity coming from the dissenters. Scalia, as mentioned, has written prophetically here. Says Mohler, “Even though the Court did not rule today that all states must legally recognize and allow for same-sex marriages, the handwriting is on the wall. Justice Kennedy’s majority opinion implicitly invites any citizen who resides in a state that does not allow for same-sex marriage to claim that his or her constitutional rights are violated on the basis of the Court’s opinion handed down today. You can count on a challenge of this form arising in short order.

“As Justice Scalia noted in his dissent today, ‘As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.’ The Court’s majority did not want to pay the political price that a decision as immediately sweeping as Roe v. Wade would have cost. Instead, the majority decided to send a clear signal that such a case will now be well received. It struck down DOMA by employing a logic that, as Scalia noted, cannot stop with the striking down of DOMA. It can only stop with the full legalization of same-sex marriage in all fifty states by judicial fiat.

“But wait, for there are more shoes to drop. In his opinion today, remember that Justice Kennedy wrote these crucial words: ‘The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.’

“What about laws against polygamy? Was Justice Kennedy even aware of just how sweeping this statement would be? Laws against polygamy were explicitly passed in order to ‘interfere’ with the ‘equal dignity’ of multiple-spousal marriages. Justice Kennedy’s opinion, now the Court’s decision, destroys any legal argument against polygamy.”

Mohler offers this sobering conclusion: “The Christian church does not ask the U. S. Supreme Court, or any other human court, what marriage is. Marriage is a pre-political institution defined by our Creator — for His glory and for human flourishing. Today’s decisions will create serious religious liberty challenges for all churches, Christian institutions, and Christian citizens in this nation. But the greatest impact of these decisions is the further marginalization and subversion of marriage. The destruction of marriage did not start recently, and it did not start with same-sex marriage, but its effects will be devastating.

“Christians will have to think hard — and fast — about these issues and our proper response. We will have to learn an entire new set of missional skills as we seek to remain faithful to Christ in this fast-changing culture. And, as warned by Justice Scalia, we do so knowing that we are waiting for the other shoes to drop.”

And we will not wait long for that.

[1478 words]

18 Replies to “SCOTUS, Marriage, and “Raw Judicial Power””

  1. As always in a Democracy, it’s the PEOPLE who have allowed this state of affairs to occur .If they had been AWAKE, they’d have seen what was ahead and prevented this sort of decision from taking place. How many were awake to the stacking of the court? etc etc etc..
    Eternal vigilance is the price of Liberty (and proper moral laws).DON’T Let your politician forget that he/she has to go by what you wish (“You” being the majority of the voters); so IF the majority is apathetic or skewered, THEN, they get what they deserve and will have a hard time trying to get things back on the rails.

    Jerome Gonzalez

  2. Thanks Jerome. Yes it is our fault for sleeping through this all, while it is also the fault of the activists who are intent on destroying marriage and family. It is certainly time for us to wake up and start taking a stand.

    Bill Muehlenberg, CultureWatch

  3. I find it incomprehensible that the Supreme Court has effectively ruled that where there is conflict between federal and state law, state law prevails.

    Dunstan Hartley

  4. The point that marriage predates the state cannot be overemphasised. The reality is that NO government can legitimately redefine marriage so fundamentally any more than it can call a square a ‘circle’, or the colour blue now to be referred to as ‘green’.

    What amazes me is that there are a great many people who do not think this issue is important. They want to move onto other matters they deem more pressing. They think we have bigger things to worry about – joblessness, the economy, health, education, environment, etc. They do not understand that this is ground zero.

    The reason is simple: if a society cannot get the most fundamental thing about human beings right – that we are created male and female – even when everybody on the planet has one mother and one father, then NOTHING will prevent the collapse of that society. With acceptance of homosexuality, it has demonstrated it has no desire to stick to even the most basic truths about life, so what chance can it have to be correct on more complicated issues?

    If your accountant believes 2+2=5, don’t expect your tax return to be accurate. If your mechanic believes your car runs on orange juice, don’t expect him to do a good job rebuilding your gearbox. Fundamental – one could even call them ‘boring’ – truths matter.

    I have stated to friends that you could have a hypothetical day of calamity in your country – where you are simultaneously hit by earthquakes, cyclones, floods, fires, terrorism attacks, economic collapse, nuclear bombs, and deadly diseases, and the long-term effects would not be as bad as only undermining marriage. If you think that is a ludicrous overstatement, I urge you to look at how places fare just 10 years or more after those kinds of disasters (usually rebuilt and/or recovered – e.g. look at pictures of Hiroshima today), and then for comparison look into the work of British anthropologist J.D. Unwin.

    British anthropologist J.D. Unwin studied the sexual behaviors of 86 cultures through 5,000 years of history. His findings were published in 1940 under the title “The Sexual and Economic Foundations of a New Society.” Unwin’s observations were — and are — sobering.

    Unwin’s observations ran counter to one of the most influential thinkers of his day, Sigmund Freud. Freud maintained that sexual repression was the root cause of a society’s ills. Unwin found the opposite to be true. Unwin’s findings showed that cultures that observed a strict sexual ethic — especially valuing pre-nuptial chastity and post-nuptial monogamy — thrived and flourished. However, those societies that rejected sexual restraint withered and died.

    “Expansive energy” was the term Unwin used to describe a culture that was growing and healthy. Concerning this reality he observed, “Expansive energy has never been displayed by a society that inherited a modified monogamy or a form of polygamy.” What Unwin discovered is that once a society ceased to value marriage and sexual restraint, it began to decline.

    He added, “In human records, there is no instance of a society retaining its energy after a complete new generation has inherited a tradition which does not insist on pre-nuptial and post-nuptial continence.”

    In other words, once a generation abandons a sexual ethic that values sexual restraint and monogamy, the following generation begins to wane culturally. It is then only a matter of time before society shrivels and dies.

    Concerning his study, Unwin made a chilling observation. He wrote, “The evidence is that in the past a class has risen to a position of political dominance because of its great energy and that at the period of its rising, its sexual regulations have always been strict. It has retained its energy and dominated the society so long as its sexual regulations have demanded both pre-nuptial and post-nuptial continence. … I know of no exceptions to these rules.”

    No exceptions to these rules. Once a society utterly rejects a sexual ethic that values restraint and monogamy, its days are numbered.

    Basically, any society that adopts any social standard that erodes the central importance of the male/female monogamous covenant we call marriage, signs its own death warrant. When some people supportive of same-sex marriage talk of being on the ‘right side of history’ on this issue, I can only speculate what warped version of history they are referring to, because it sure isn’t what thousands of years of human experience and dozens of civilisations testify to.

    Christians need to wake up and get involved in this issue. It could not be more critical.

    …in an amoral, hedonistic society, you can’t trust the people you need to trust, not even your spouse. Moreover, if people can make and break relationships at will, with no legal repercussions or social stigma, they are much more likely to abandon their marriages—at their children’s expense—when the going gets tough.

    Mark Rabich

  5. I have a very poor head for understanding complex politics; but I believe that the same structure re the forced recognition of “married” gay couples is being organised across the EU as well. Bill has probably already covered this fact in an earlier post….I just can’t remember when.

    As more EU countries legalise SSM, any gay couple living in, and wanting to marry in, a country that doesn’t recognise SSM will be able to go elsewhere, get married, then return to their native non-compliant home and demand recognition as a “married couple”……..something along those lines anyway.

    In the UK, we’re still having the SSM Bill examined in the House of Lords. Already the huge flaws are showing. People are now asking how the law will cope with “gay divorce” and “consummation”; the ideas being put forth are so utterly ludicrous and mind-boggling, it’s gone beyond belief.

    It also emphasises the fact that Our Lord never intended relationships to be this complicated…..marriage, one man, one woman….how much simpler do people want it? Talk about divide and conquer….now Scotland’s talking about “marriage lite”, civil partnerships for hetero couples, all the rights and privileges without the spiritual promises….so do we now face three or even four tiers of marriage in the future?

    The whole thing is a massive disaster. But people just can’t see the problem. They truly are utterly blind.

    Chris Dark

  6. I can hardly believe I would see the day when the USA, which once did so much to spread the gospel, is now coercing third world nations to open doors to abortion and same sex marriage. If it is legalized in the West, it can’t be far before we are all reeducated. For many years we have watched persecution in other countries. It looks like our turn is coming. We certainly ought not to be taking it lying down.

    Greg Cadman

  7. While the decision is bad enough, In it’s refusal to hear from the people supporting Prop.8 they have rejected a very important clause in the US Constitution which makes it very clear in it says “WE THE PEOPLE”……

    God help America (and Australia too) because it won’t be too long before our returning PM will not doubt push SSM.

    Prayer is the answer as so many people today are politically illiterate.

    Madge Fahy

  8. @Mark Rabich, love your post, especially the Unwin quotes. You stated: “Once a society utterly rejects a sexual ethic that values restraint and monogamy…”

    All you need do is look at what Syphilis did to Naples, Italy in 1494-5. Also known as the Great Pox, it decimated Naples. While there are two key theories as to what brought Syphilis to Italy (Columbian and Pre-Columbian – which I won’t go into here) what is more important is the reason as to why the disease spread like wildfire. If you look at the lifestyle of Naples at the time, promiscuity was rife.It is very obvious what caused the spread of the disease.

    Even today there is no vaccination for syphilis; condoms are not 100% guaranteed. The only sure fire prevention of the spread of syphilis is abstinence. Intramarital sex is a safe bet too (unless there have been affairs). The CDC states that “…it is best to abstain from sex while any sore is present in the genital, anal, or oral area….”

    Finally, my key point is that, much in the vein of Unwin, abstinence, marriage and monogamy help keep a society healthy.

    In Strained Relations Bill covers the AIDS epidemic of the 1980s. And, unless my recollection is flawed (it has been a while since I read it), Bill wrote about the promiscuity of the Gay community being significantly higher than within the Heterosexual community.

    Promiscuity is plain and simply unhealthy for the community at large. If your biblical arguments against the lifestyles of the promiscuous (homosexual and heterosexual) are shouted down, public health is a worthwhile tact too!

    There are so many elements to the homosexual debate, such as Public Health, that just get absolutely swept under the carpet. There is no way the issue is simply about Civil Rights, Equality and SSM.

    Matthew Patchon

  9. Our (Christian/Conservative) side made a mistake from the very beginning of this controversy. We allowed the other side to fool us into debating the EQUALITY argument whereas we should focus on the WHAT MARRIAGE IS arguments. Do you spot the difference?

    Of course, when you treat this important issue from the equality perspective, you run massive risk to lose the debate in a liberal society. Once homosexuals managed to convince some politicians that they are a separate group, you cannot, in principle, deny them something that others enjoy. Instead, we should put our entire intellectual armory into what marriage is and why the state has to protect it the way it is. In this case, it would be easier for people to understand the issue and it would minimize the number of useful idiots in the homosexual lobby’s pocket.

    Alex Spak

  10. Mark. “The reality is that NO government can legitimately redefine marriage so fundamentally any more than it can call a square a ‘circle’, or the colour blue now to be referred to as ‘green’.
    Thanks for your excellent post and following comment.
    You are so right. In all of these countries, and in the UK where SSM is going through our Parliament, it MUST be the case of “sow the wind and reap the whirlwind”.

    If the Bill for SSM is finally ratified in the UK then it ought to create a constitutional crisis in that our Sovereign should decline to give it the Royal Assent which would kill it dead.

    In her Coronation Oath, (entrenched in an Act of Parliament) sworn before God and the people back in 1953, she solemnly declared her intention to :

    “maintain the laws of God, the true profession of the Gospel, and the Protestant Reformed religion established by law”.

    Obviously SSM and her vow on that occasion are incompatible. It remains to be seen whether she will have the courage to resist her government, decline the Royal Assent, and hold to her vow.

    Graham Wood, UK

  11. Its good to read these words by Al Mohler and for the principle to be re-stated as he does:
    “The Christian church does not ask the U. S. Supreme Court, or any other human court, what marriage is.

    There is an interesting precedent in the UK which raised yet again the question by what right the State has to interfere in any way with the internal doctrine and practice of Christian churches?
    In 1921 the London Westminster Parliament sought to interfere with the Church of Scotland’s practice (I forget the actual issue)
    It resulted in a robust statement of Biblical principle from that church concerning the autonomy of the Church of Christ and freedom to reject political entanglement, with a refusal to compromise:

    “The Church, as part of the universal church wherein the Lord Jesus Christ has appointed a government in the hands of church officers (and people), receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline of the Church”

    Would that all Christian churches faced with today’s secular challenges from SSM and possible litigation over “gay marriage services”, grasped this essential principle of the Lordship of Christ in and over His churches.
    There can be no compromise over this issue.

    Graham Wood, UK

  12. We live in times which see Western nations looking more and more like the anarchy of the days of Israel’s Judges: “There was no king in Israel and every man did what was right in his own eyes.”.

    Islam is a rising cultural and political force which believes more in moral absolutes than Post-modern Western civilisation does. Will Western military interventions in Iraq, Afghanistan and Libya really stop the eventual collapse of the US and her NATO allies, or will they only serve to inspire a new generation of jihad against Western spiritual and moral decadence?

    John Wigg

  13. Bill, why do you seem so pissed about the supreme court granting rights to same sex couples. It’s the fact whether you like it or not.
    Frank James

  14. Thanks Frank

    Of course granting special rights to homosexuals by destroying the institution of marriage helps no one – except the militants and their war on marriage and family. Destroying the most important social institution in history by redefining it out of existence matters big time.

    Your comment is about as helpful as me telling you in, say, six months: “Frank why do you seem so pissed about the supreme court granting rights to polyamorists. It’s the fact whether you like it or not.”

    Or if I say in twelve months time: “Frank why do you seem so pissed about the supreme court granting rights to those into incest. It’s the fact whether you like it or not.”

    Bill Muehlenberg, CultureWatch

  15. You cannot legislate righteousness. SCOTUS and many other governing institutions have demonstrated that the world is only interested in legalising wickedness.
    Reading Israel’s OT history shows that grass roots movements for change have little impact. Real revival came not through the prophets (who were given a mission that was usually doomed to failure), but when the king rediscovered the Law and led the people in national repentance. What followed was the rebuilding of the temple, and a cleanout of the idolatrous shrines and priests throughout the land, and a reintroduction of temple worship and the teaching of the Law. When the king lost direction, the trouble and idolatry returned.
    Obama is cheering from sidelines.
    We will only continue to see the legalising of wickedness until our society completely collapses. Democracy is not Christian, it is Greek. We can only cry out in protest and recognise how far we have fallen.
    John Churchward


    Leigh Stebbins

  17. I can only speculate if Frank would have supported the decision of the Supreme Court had it gone the other way. After all, that would’ve been “fact whether (he) liked it or not.”

    But the fact people like him carry on bludgening ordinary people with this social marxist agenda even after they get rebuffed (eg. Both the HoR and the Senate here in Australia rejected ssm only last September by a clear majority, yet just 9 months later here we are again with our newly recycled PM talking about it) tells me they only have respect for the law when it suits them. The only thing in their minds that matters is that they get to twist laws to force everybody to their way of thinking.

    Mark Rabich

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