DON VINCENZO writes:

The clock struck 10:01 A.M. on the clock that sits above the chair of the Chief Justice of the U.S. Supreme Court yesterday, and the Clerk intoned, “All rise,” and with those words the nine Justices of the Court filed into their respective seats that are bracketed by four Doric granite pillars. There was not an empty seat to be found in the Court, for this case had prompted widespread attention not only in the U.S., but from media outlets all over the world.

The oral arguments in the case of Hollingsworth (a California Legislator) v. Perry, centered around Proposition 8, now part of the California Constitution, which defined “marriage” as “only between one man and one woman,” were about to be heard. One hour and thirty minutes later, Chief Justice Roberts gaveled the end of the session, and the Justices departed in the same way they had entered, disappearing behind the red curtain.

What happened in those ninety minutes will be reviewed and reconsidered by legal experts for days if not weeks, but I believe that certain threads may be drawn from the legal arguments. The legal defender of Proposition 8 was Charles Cooper, a Washington attorney who was there because, and this is very important, the governmental officials of the State of California had refused to enforce the results of the referendum. They had decided it was not fair to homosexual couples, despite the majority vote for the ballot initiative, and “they” included a Republican Governor, Arnold Swarzenegger, and a Democrat, the incumbent, Gerry Brown. In short, neither the Governor nor the Attorney-General was doing what his job requires him to do: to enforce the laws of the state or this ballot initiative.

In another of his poor performances before the nine Justices, Solicitor-General Donald Verrilli, sometimes under intense scrutiny, informed the Justices that the administration and the U.S. Attorney-General had decided not to enter the case, despite the probable likelihood that the democratic process had been short-circuited.

Those who sought to overturn Proposition 8 chose wisely in selecting Ted Olson as their counsel. Confident and smooth in his delivery, and well versed in the law, he was the outstanding legal figure before the Justices yesterday, although I suspect that he knew that he was playing with a weak hand. Olsen repeatedly pointed out that homosexuals now can adopt and raise children in the State of California, and cited the figure of 37,000 such children in the state now adopted by homosexual couples. Why, then, he asked, can’t they be allowed to be married?

Other than the question of legal “standing” in the case, the other aspect of the case that surprised me was the noticeable reluctance by Cooper, the defender of “traditional marriage,” to bring in the moral or religious issue of a man and woman comprising a family. While Olson repeatedly – and intentionally – responded by claiming that “gay marriage” was another civil rights issue, those critical of the idea seemed unwilling to bring the religious dimension into the legal discussion; in fact, they seemed to avoid it like the plague. Only Justice Alito referred to the fact that “traditional marriage is 2000 years old,” but advanced his argument no further.

The outcome of the deliberations remain unknown and will for months, but if the Court decides in favor of homosexual marriage, the federalization of marriage will, as in their abortion decision, blow away any and all restraints on the institution of matrimony. If two men can marry, then why not three? And what of the state restrictions on incest? Once opened, the new Pandora’s Box cannot be closed, and as in the case of abortion, it will become part of the national mentality.

—- Comments —-

Henry McCulloch writes:

I have the ominous feeling that the U.S. Supreme Court will use the “single-sex marriage” cases to destroy the legal — and immemorial traditional — foundations of marriage in the United States.  I use quotation marks because such a thing is an impossibility, no matter what California governors, U.S. presidents, ex-presidents and vice presidents, Republican politicians with homosexual children, British prime ministers, Michael Bloomberg and, I fear, a majority of this Supreme Court’s Justices may say.  I’ll call it ‘the issue’ to spare readers quotation marks.

Don Vincenzo writes:

Other than the question of legal “standing” in the case, the other aspect of the case that surprised me was the noticeable reluctance by [Charles] Cooper, the defender of “traditional marriage,” to bring in the moral or religious issue of a man and woman comprising a family. While [Theodore] Olson repeatedly – and intentionally – responded by claiming that “gay marriage” was another civil rights issue, those critical of the idea seemed unwilling to bring the religious dimension into the legal discussion; in fact, they seemed to avoid it like the plague. Only Justice Alito referred to the fact that “traditional marriage is 2000 years old,” but advanced his argument no further.

It is disappointing that Charles Cooper, defending California law since California’s government refuses to, would not appeal to the “moral or religious issue of a man and a woman comprising a family”, because it is both true and a common-sense view of marriage that can be traced back through American and America’s ancestral English common law to at least the Twelfth Century, when learned commentaries on the Common Law begin.  It is also the presumed underpinning of marriage in Justinian’s Corpus Juris Civilis, the definitive digest of Roman civil law, so common sense in the matter of marriage long predates even the Common Law.

Until no more than 20 years ago it would have been very hard to find a lawyer, except maybe a few militant homosexualists, who would argue otherwise.  It is depressing but not surprising that in 2013 Cooper must think common sense and the plain common-law foundations of American family law are too controversial to cite even in a case with such potentially dire consequences for families.  But why should he not have?  If Cooper was worried about being pilloried for making a religious (i.e., “narrow-minded and bigoted”) argument against the specious right of homosexuals to follow their bliss into faux-wedlock, he needn’t have been.  The common-law understanding of marriage offers arguments that can be made with no reference to religion, although a Christian world-view does inform the Common Law.

Advocates of the issue frame their arguments in terms of civil rights, as though denying homosexuals an imaginary right to marry one another is tantamount to murdering them or reducing them to chattel slavery.  Opponents of the issue usually fall for the rhetorical sleight-of-hand of debating the issue in the realm of civil rights, and so cede the perceived moral high ground to the issue’s advocates.  This is analogous to abortion opponents’ allowing abortion’s advocates to arrogate the term “pro-choice” to themselves decades ago.  The defenders of truth begin at a rhetorical disadvantage.  And in legal battles such as these, rhetoric (after money) is the main weapon.

I do not understand why nobody opposed to recognizing homosexuals’ pairings as a form of marriage will not counter the issue’s advocates’ civil rights-based arguments with this obvious rejoinder:

There is no civil rights issue here, and no discrimination against any group in the matter of marriage under the laws of any state.  Marriage is the union in matrimony of one man and one woman, sanctified in a religious rite or acknowledged in a civil ceremony or both.  In mainstream Western society it has never been anything else.  No law of any state prohibits a homosexual’s being married to a willing partner of the opposite sex, thus there is no discrimination in matrimonial law against homosexuals as a class of persons.  Real marriage may not be congenial to most homosexuals, but that is a matter of homosexuals’ preferences — not a question of legal exclusion.

I must be unusually dense, or perhaps I’m just several centuries behind the times (I might have been more in synch with the society of 12th Century England than I am with 21st Century America…), but I do not understand why no lawyer arguing against the issue will make this simple point.

Compounding my unease, Don Vincenzo also writes:

Those who sought to overturn Proposition 8 chose wisely in selecting Ted Olson as their counsel. Confident and smooth in his delivery, and well versed in the law, he was the outstanding legal figure before the Justices yesterday, although I suspect that he knew that he was playing with a weak hand. Olsen repeatedly pointed out that homosexuals now can adopt and raise children in the State of California, and cited the figure of 37,000 such children in the state now adopted by homosexual couples. Why, then, he asked, can’t they be allowed to be married?

Theodore Olson is a very able lawyer, as shown by his slick if legally irrelevant insinuation that children‘s rights are endangered by opposing the issue, and it’s not fun to read that the most capable advocate in the courtroom is leading the enemy’s team.  Don Vincenzo also mentions that Obama solicitor general Donald Verrilli argued weakly.  That’s no surprise, but no cause for comfort.  Verrilli’s arguments were weak and thoroughly dissected in the Obamacare and Arizona cases’ oral arguments, but the Obama administration still got the results it wanted.  As for Olson, a career Republican and seemingly once a conservative, what brought him to the dark side and advocacy of this issue?  Does he share a family problem, so to speak, with Dick Cheney and Rob Portman?

I have no faith in the U.S. Supreme Court as an institution, worthy though some individual Justices are, and expect nothing but bad from Chief Justice Roberts after his Obamacare shenanigans.  Whenever a majority of Justices has a preferred liberal policy outcome, the Supreme Court does not allow itself to be constrained by the Constitution or any other law.  My fear and expectation is that the Court will issue majority opinions in favor of the issue in both cases, based on pseudo-constitutional arguments and social-science musings no more sound than previous Courts’ rationales in Dred Scott v. Sandford, Brown v. Board of Education, Plyler v. Doe, Roe v. Wade/Doe v. Bolton, Lawrence v. Texas and Grutter v. Bollinger, to name just a few anti-constitutional low points from the Supremes.  The U.S. Supreme Court is an unelected legislature that always drives left, a progressive dictatorship of the bench.  I expect the Court to ravage marriage as it has already ravaged so many other institutions of American society.

I’ll pray to be wrong, and hope I shall be.

Please follow and like us: