Same-Sex Marriage: Who Decides?

By | March 29, 2013 | 0 Comments

Supreme Court hears arguments on whether people of California have the right to define marriage in Proposition 8, and whether Congress has the power to define marriage for federal purposes in Defense of Marriage Act.

Ninth U.S. Circuit Court of Appeals overturns Proposition 8, which people of California passed to define marriage as between one man and one woman.

Massachusetts Supreme Court orders legislature to legalize same-sex marriage.

Supreme Court overturns most provisions of Arizona immigration law.

Supreme Court forbids executing first-degree murderers who were 16 or 17 years old at the time of the crime.

Supreme Court forbids sentences of life imprisonment without parole for murderers who were 16 or 17 years old.

BTK killer (bind, torture, kill) accused of at least 10 horrific murders, but is not eligible for death penalty, because Supreme Court banned it during period crimes were committed.

Federal court blocks California death penalty, claiming that lethal injection – the way we put beloved dogs and cats to sleep – is “terribly painful.”

Florida Supreme Court throws out “Terri’s Law,” claiming that the court and not the legislature – and not her family – has the power to say whether the brain-damaged woman will be starved and dehydrated to death. U.S. Supreme Court allows this decision to stand, and Terri Schiavo dies after 13 days without water or food.

Whether you agree with all these decisions, or some of them, or none of them, the basic question remains: Who decides? We can decide between hundreds of channels for our TV, a myriad apps for our phone, and countless cereals for our breakfast. But even trivial decisions are already being made by the government – from light bulbs and toilets, to dishwashing detergent and shower heads, to salt shakers and sodas – for our own good, of course.
Many laws are no longer enacted by the people or their elected representatives. Important decisions are now reserved for the “elite.” So we sit, waiting for five justices to decide whether to redefine marriage as including same-sex couples, for the first time in world history – and cram the decision down the throats of 315 million Americans.
Through six thousand years of recorded history – from pagan Egypt, to Jewish Israel, to Zoroastrian Persia, to Hindu India, to Buddhist Tibet, to Confucian China, to Shinto Japan, to Catholic and Protestant Europe, to Muslim Arabia, to the atheist Soviet Union – marriage has always been between male and female. The age of consent was raised, and polygamy was outlawed in most places, but nowhere did marriage include same-sex couples.
But the “elite” believe themselves wiser than Jesus, or Moses, or Muhammad, or the Buddha, or Confucius, or the secular scholars of the Enlightenment. Like self-absorbed teenagers, they are uninterested what happened before they were born. They ignore the wisdom of millennia and focus on their own feelings. If there is a better definition of narcissism, I have yet to hear of it.
How can we call ourselves free, when we wait passively for unelected judges with lifetime jobs to make crucial decisions for us and our loved ones? I hope the court upholds Prop. 8. But I recognize that even if the courts do what I want, giving them too much power is dangerous.
The decision on same-sex marriage, like that on ObamaCare, will probably come on a five-to-four vote. Do five people have the power to give orders to 315 million Americans? And do we, and our elected representatives, have no recourse but to obey? Before you answer, consider this:

I know of no safe depository of the ultimate powers of society but the people themselves.
– Thomas Jefferson

Liberals talk about “people power.” But talk is cheap. In practice, liberals encourage activist judges to legislate from the bench. No matter how you feel about abortion, the death penalty, euthanasia, same-sex marriage, and other key issues, the question remains: Who decides?
As Ben Franklin emerged from the Constitutional Convention, a woman asked what kind of government we would have. He replied, “A republic, if you can keep it.”
Well, can we keep it? In fact, have we kept it? The self-anointed elite believe they know better than the “common” people. How did that happen?
Marriage has been defined worldwide as between men and women since the beginning of civilization. The death penalty has been imposed on murderers since the time of the Bible. Euthanasia has been illegal since the time of ancient Greece. If these millennia-old principles are to be trashed, surely such momentous changes should be:
● Carefully considered, with the input of religious and secular scholars.
● Discussed by the people until a consensus is reached.
● Voted upon by the people’s representatives, or by the people themselves.
If this process had been followed for abortion, there would be much less bitterness today. But the Supreme Court decided the matter. Having learned nothing, courts continue to short-circuit the decision-making process. Courts decide, often by slim margins, the weightiest matters, then enforce their decision on the legislature, the executive, and the people. But so long as the decision goes along with your beliefs, you see no problem.
You’re pro-abortion, so it’s no problem for you that the Supreme Court forbade Congress and state legislatures from passing most laws that interfere with abortion.
You’re for same-sex marriage, so you nod approval when the supreme court of Massachusetts orders the legislature to legalize it.
You oppose capital punishment, so you say nothing when courts invent new roadblocks to prevent it.
You favor euthanasia, so you yawn in indifference when courts order a semi-conscious woman to be killed slowly.
You see nothing wrong with a few people in black robes giving orders to 315 million Americans. But what if courts decide to impose their whims on you, and you don’t agree?
● What if courts in a state with a large Muslim population force us to recognize polygamous marriages, as is already happening in Britain and Canada?
● What if courts in another state force us to recognize marriages between 14-year-olds, or between close relatives?
● What if courts order that people over age 70 be denied expensive medical care? Think of the money Social Security and Medicare would save.
● What if the Supreme Court orders that all Muslims be deported? Japanese were interned during World War II, and the court approved – twice. Note that this happened under liberal icons President Franklin Roosevelt and California Attorney General Earl Warren. Who says it can’t happen again?
But, you say, we’re protected by the Constitution. Really? The Constitution mentions the death penalty four times, but doesn’t mention abortion at all. Yet judges insist that the Constitution contains a right to abortion, but they repeatedly block executions.
What’s there they can’t find, but what isn’t there they do find. “Law” that is unpredictable and arbitrary isn’t law at all, but a series of dictatorial decrees. It loses any moral claim to be respected.
Does the Massachusetts constitution require the recognition of same-sex marriage? Does the Florida constitution empower judges to enforce euthanasia despite the wishes of the people’s elected representatives? Does the U.S. Constitution forbid life sentences without parole for 17-year-old murderers?
Did the authors of these documents intend to include these provisions? Then why didn’t they? Judges are enforcing their own beliefs and calling it “the Constitution.”
This is worse than having no Constitution. If we had no Constitution, laws would be made by legislators, and if we disagreed, we could vote them out at the next election. But a “living” Constitution is a double-0 license, empowering judges to do whatever they please – and we can do nothing about it.
Dictators are still dictators, whether they wear brown uniforms or black robes. What will you do when your favorite right disappears? How will you react when you’re ordered to do what violates your deepest beliefs? But then it will be too late. What can we do before that happens?
● Remember what Pastor Niemöller taught us: Speak up, or soon there will be no one remaining to speak up for you.
● Vote for candidates who favor strict – that is, originalist – interpretation of the Constitution.
● When possible, vote for judges who favor strict interpretation.
● Make sure the Senate has a Republican majority, so strict-constructionist federal judges can be confirmed.
● Insist that judges interpret the Constitution as actually written and as its authors intended, and not follow their own whims, and certainly not foreign laws.
● Press for the recall or impeachment of judges who act like dictators.
● If all else fails, refuse to participate in actions you believe are unconstitutional or immoral.
What is decided may be of great importance. But who decides is even more important. In answer to Franklin’s warning, I have to reply, “I don’t know, Ben. I hope we can keep our republic, but it will take a lot of work.”
When Congress passed the 2700-page monstrosity called ObamaCare, a reporter asked then-Speaker Pelosi if it was constitutional. She giggled and asked, “Are you serious? Are you serious?” To some, the Constitution has become a cause for laughter. But not to others. Yes, we are serious. Dead serious.

Supreme Court Building
Note Moses with Ten Commandments

A prior version of this column appeared when the Supreme Court was deciding the fate of ObamaCare. And I intend to post another version when the courts make yet another autocratic decision determining crucial aspects of our lives – which will surely happen. Contact: You are welcome to publish or post these articles, provided that you cite the author and website.

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