A Roe by any other name
Townhall – Mona Charen – 6/28/2013
The majority was showboating
its enlightenment, that's what. As Justice Alito observed, there is no
constitutional resolution to the same-sex marriage debate. Unlike other
liberties found by the Court to inhere in the Due Process clause, it cannot
conceivably be described as a "fundamental right deeply rooted in this
nation's history and tradition." It belongs, accordingly, with the people
and their elected representatives.
But the majority will have
none of that. Gone is the usual deference that the court offers to the other
branches of government. Rather than evaluating whether there was a
"rational basis" for the law -- a traditional test in cases involving
the Due Process and Equal Protection clauses of the Constitution -- Justice
Kennedy's majority opinion completely ignored the many valid reasons Congress
might have had for enacting the law.
Instead, Kennedy threw insults at the 342 members
of Congress, 85 senators, and the president who enacted the law. Their motive,
he wrote was a "bare ... desire to harm a politically unpopular
group." The law inflicted "injury and indignity." It was
intended to "injure the same class the State seeks to protect." The
"principal purpose and the necessary effect of this law are to
demean." "The avowed purpose and practical effect of the law here in
question are to impose a disadvantage, a separate status, and so a stigma upon
all who enter into same-sex marriages made lawful by the unquestioned authority
of the States."
The inflammatory language of
this opinion will also echo through the coming debates about charitable status, government contracts,
licenses and accreditation. The Supreme Court has decreed that there is
no possible rationale beyond hatefulness to oppose changing the ancient
institution of marriage. This sets the stage for nearly all religious
institutions to be considered agents of bigotry.
As many in the pro-marriage
coalition have been arguing for two decades, the case for traditional marriage
is not about hostility to homosexuality. It's about staunching the decay of the
institution that undergirds everything else in our society. To enshrine same
sex marriage is to endorse the idea of marriage as adult fulfillment.
Marriage is much more than
that. But the argument will have to continue outside the legislatures and the
courts -- because five members of the
Supreme Court have taken our power, our franchise and our sovereignty from us.
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