The US Supreme Court’s decision on same-sex marriage is expected to come this summer, and there are many reasons to believe that a 5-4 majority of Justices is prepared to publicly throw away all principles of sound legal reasoning in order to impose on all 50 states, whether they want it or not, an obligation to legally recognize same-sex “marriages”.
In this regard, we would draw the attention of our readers to two recent blog posts.
One is on the website of the Witherspoon Institute, where Michael Stokes Paulsen draws an interesting parallel between the Supreme Court’s infamous Dred Scott v. Sandford Decision of 1857, which de facto obliged the Federal State to give legal effect to state laws on slavery even outside the remit of legislative competence of those states, and its Windsor v. United States Decision of 2013, which does the same for same-sex marriage. Just as Dred Scott in theory left room for individual states to not legally provide for, or accept, slavery, Windsor in theory still allows states to define marriage in conformity to what nature and reason require, i.e. as a union between a man and a woman with the purpose of founding a family. But only in theory.
Dredd Scott v. Sandford played a key role in unleashing the American Civil War. Could the marriage issue prove equally divisive in our time? If the cultural war has until now taken place in court rooms rather than on battle fields , this has to do with the fact that Americans have so far had the confidence that ultimately the Supreme Court would settle the matter in accordance with the law. The Windsor judgment has undermined that confidence, and a second such ruling would destroy it completely, triggering the worst constitutional crisis in the US since the 1860s.
The claim that the US Constitution requires Union and states to treat different-sex and same-sex couples alike is spurious: had that been the intention of Jefferson and the other drafters, same-sex “marriages” would have been introduced more than 200 years ago. The case made by the homosexual lobby thus has no basis in the law.
But it also has no basis in rational argument. The advocates of same-sex “marriage” steadfastly refuse to explain even to define what “marriage” is according to their view supposed to mean. They reject the view, consistently held by all known human civilizations, that marriage is the conjugal union of a man and a woman, and replace it with … nothing. After twenty years of relentless campaigning they are still unable to explain why “marriage”, if it can comprise same-sex couples, could not also include father-daughter, mother-son relationships, or the relationship between siblings, or the relationship between more than two persons. Same-sex “marriage” makes no sense at all, because it simply dissolves marriage.
If same-sex “marriage” has a basis neither in positive law (in this case, the US Constitution) nor in reasonable argument, could a Supreme Court judgment in favour of it at least be “justified” by public opinion?
Of course not. Public opinion can never provide a justification for lawless and irrational court decisions. In addition, – and this is the second link we are proposing – a recent poll suggests that even after years of intense brainwashing by Hollywood and the mass media a strong majority of Americans still believes that “States and citizens should remain free to uphold marriage as the union of a man and a woman and the Supreme Court shouldn’t force all 50 states to redefine marriage.” That is precisely what the upcoming Suprem Court decision is about.
In other words, there is nothing to prevent the Supreme Court from adopting a 5-4 decision obliging all 50 states to re-define marriage. But such a decision would be un-constitutional, irrational, and contrary to public opinion. It would merely be an irresponsible misuse of judicial powers by 5 men and women wearing black robes, with consequences that may well undermine the United States’ position as the world’s single remaining super-power