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Saturday, January 18, 2014

The new sovereigns

Commenter Bert requested a post about the recent rash of federal judges striking down various States' gay marriage bans (that is, those States' legislative declarations that they will not recognize a homosexual union as a legal marriage).

I actually posted on this already.
... To wrap up, the American people who imagine themselves sovereign need to recognize that the government's "democratic" structures do not enable, empower or defend self-rule. As Mencius notes, "The right to rule is a function of the might to rule." And a very good example of this is the duo of "gay marriage" cases recently decided by the U.S. Supreme Court.

In the first case, the Court struck down the federal Congress's Defense Of Marriage Act on equal protection grounds: the U.S. government cannot deny the privileges it extends to heterosexual couples to homosexual couples. To get to that conclusion, the Court had to recognize a classification meriting equal protection--homosexuality--never contemplated in the history of America or the world. Marriage, in fact, pre-dates the State. This was purely a policy choice by a majority of the Court's justices. For all the fancy language the decision comes down to this: the Justices recognized a protected status of homosexuality because 1) they could (being "sovereign" after all), and 2) therefore they think they ought.

Now, there is a very good argument that DOMA exceeds the scope of the U.S. government's enumerated powers and regulation of marriage is reserved to the several States. But the Court, having decided that gay marriage shall be, was not done. In the second case, the people of California expressed their policy choice and passed a statute reserving marriage for monogamous heterosexuals. But the people of California are not actually "sovereign," so a homosexual district court judge struck down the statute. The actual California sovereigns, the executive branch, declined to defend their legislature's statute and a citizen's group tried to carry the ball on appeal. They got tackled by the Supremes: no standing to appeal, citizens. The district court's judgment therefore remained intact, and California's actual, elected-at-large sovereigns gleefully grabbed their ankles to take one for the gay marriage team.

Recall the other Mencian axiom from my July 4 post: sovereignty can be divided and still "add up." In this case, a pushy, aggressive, strategically shrewd group--homosexual activists--have gotten a seat at the sovereign table, and orthodox Christians have been evicted.

And that is that.

2 comments:

Scotsman said...

You have to wonder, is the sky the limit on what the 14th Amendment can overthrow? How much longer do you think they be using it strike down pedophilia laws?

lannes said...

I'm amazed that Americans are so willing to be told by these militant gays what to say and how to act!