The Supreme Court and Faux-marriage Fallacies

By:  Selwyn Duke
04/01/2013
       
The Supreme Court and Faux-marriage Fallacies

Shouldn’t homosexuals have the right to marry if other Americans enjoy that right? Yes, they should. They have a right to form that union with a member of the opposite sex that we call marriage.

This isn’t just rhetoric. It is in fact a point that gets to the very heart of the matter, and traditionalists ignore it at their own peril.

With cultural defenders such as some of our conservatives, who needs liberals? One could draw this conclusion when observing the Proposition 8 case currently before the Supreme Court.

So far we have we heard arguments about the “sociological” impact of faux marriage and, from pro-marriage (conservative) lawyer Charles Cooper, about awaiting “additional information from the jurisdictions where this experiment is still maturing,” as if the case is just a matter of whether the Court should be an agent of social engineering at this time and in this instance. Justice Anthony Kennedy, who could be the swing vote in the case, weighed in on both sides of the debate, saying, “There’s substance to the point that sociological information is new. We have 5 years of information to weigh against 2,000 years of history or more.” But he also claimed that California’s “40,000 children with same-sex parents…want their parents to have full recognition and full status” and asked Cooper, “The voice of those children is important in this case, don’t you think?” My answer?

No, it isn’t.

The only voice that matters is the Constitution’s. The whole point in having rule of law is that its application is not dependent upon what the “voice” of a given group of Americans might say at any given time (or upon some smaller group’s conception of what that voice demands), regardless of how sympathetic that group may be. Would you want First Amendment rights to be negotiable based on how a compelling “voice” may be able to tug on heartstrings?

And the Constitution is silent on marriage, meaning that the issue is the domain of the states. What, though, if the states legislate a marriage standard that has negative “sociological” impact? Well, what if a state institutes a poorly conceived driver’s test or productivity-stifling tax laws and regulations?

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