Wednesday’s results at the Supreme Court confirmed yet again that America has become a government of, by, and for judges. It is hard to imagine a more hapless outcome for the people: the justices at once gave themselves authority to determine a case that they had no right to hear while denying standing to the people of California in another case, thereby giving the pols who put the people in that spot (by refusing to defend Proposition 8) an opening to impose a lower-court ruling on them.
The upshot of the rulings is that 5 judges have now imposed gay marriage on 300 million people. It is no longer a question of if that imposition will happen but when. As Justice Scalia pointed out in his dissent from the majority’s rejection of the Defense of Marriage Act, the Court has effectively taken the issue away from the people:
It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here -- when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.
The same willful disdain that the Court applied to DOMA can be applied to every prohibition on gay marriage within the states. Scalia even diagrammed how it will be done. He took passages from the majority’s opinion and inserted state-related language where federal mentions now exist.
He also emphasized that the Court’s disclaimer of restraint is worthless, since Justice Kennedy had issued the same disclaimer when he struck down state sodomy laws in Lawrence v. Texas — a ruling on which he leaned in this one, writing that DOMA “demeans the couple, whose moral and sexual choices the Constitution protects.”
By “Constitution,” Kennedy means a ruling he made up out of thin air. That he would piggyback off it completes the picture of brazen activism.
The DOMA decision is a monument to the Court’s caprice, no more authoritative than the nonsense Kennedy uttered in Lawrence v. Texas: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.”
In this decision, Kennedy adopts a tone of smarmy opportunism, advertising his concern for the children supposedly damaged by DOMA: “The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Of course, if anybody had shown concern for these children before they were plucked from orphanages or labs and placed in these perplexing situations Kennedy would regard those people as bigoted. Were the “children” consulted before they were deprived of a father and mother? Do they have any rights? In Kennedy’s define-reality-any-way-you-wish country, children will have no rights. They are simply the accessories of adults.
Kennedy tried out other lines of propaganda, relying upon the same sort of soft babble that he previewed in Lawrence v. Texas: DOMA “demeans” people, makes couples feel “less worthy,” spreads a “stigma,” and so on. None of this is even remotely jurisprudential. But since all this pro-gay marriage spinning is now sealed in a Supreme Court decision, lower courts eager to overturn state bans will make ample use of it. Don’t kid yourselves, said Scalia. It is over at the judicial level: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
The only question now is: How long will the people endure this tyranny of judges? The lawlessness that they exhibit in these rulings will one day catch up with them. If the rule of law is nothing more than the rule of the powerful, what is to stop the people from marching on court houses and throwing judges out on the street? Why is Justice Kennedy’s bogus reading of the Constitution any more binding than the real one? The Court will one day find itself no more protected than marriage.