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Government Became Unstoppable Yesterday

I for one welcome our….Ah. Skip it.
Regardless whether you cheered or wept at yesterday’s DOMA ruling, you will have done nothing but affirmed your own uninformed prejudices if you do not read the opinions of the court. They are here: PDF.

You may at first believe that the decision pertains to whether the hugely bipartisan Congress was right to create and whether Democrat president Bill Clinton acted lawfully to sign the Defense of Marriage Act into law, but this was a minor event.

What actually happened was the government became intolerably powerful yesterday. There was a fundamental, irreversible shift in the way this country is governed. If you hated DOMA, you will pass lightly over this. You got what you wanted. Who cares how. If you loved DOMA, you will shed tears for the culture and rage at those who would destroy tradition.

Both sides will miss what was most important.

Read Justice Kennedy’s opinion; rather his cri de coeur, which can be summarized thusly: “A majority of my fellow citizens are my enemies and are evil. And I want what I want because I want it therefore what I want shall be so.” Good enough if you agreed with his desires. But never was there such a failure by the Court to uphold its traditional—and Constitutional—purpose.

Yesterday the Court crossed the Rubicon and joined willfully, loudly, with flags waving, one of our warring camps. This will please you if it was your side. What you will fail to consider in your joy is the terrible price paid for the small victory you gained, one which would have been yours in a short time anyway. The Court is now and forevermore nothing but an immensely powerful instrument of whatever party happens to be in office. It now thinks itself as lawmaker.

Scalia recognized this. His dissent (starts p. 35) is the most astonishing document ever issued by a justice. He said, “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case.”

I cannot here quote all of it, though it is tempting (all emphasis his).

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

[A] single sentence lays bare the majority’s vision of our role…It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

“They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive.”

“The ‘judicial Power’ is not, as the majority believes, the power ‘to say what the law is,’ ibid., giving the Supreme Court the ‘primary role in determining the constitutionality of laws.'”

“The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit.”

“But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a ‘primary’ one.”

“In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.”

“There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are.”

“Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.”

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

I must emphasize, if it already isn’t clear, that our concern is not DOMA. It was in how the Court came to its decision and what that means. Please let’s don’t let’s rehash DOMA itself, which Scalia summarized:

“[T]he majority says that the supporters of this Act acted with malice—with the ‘purpose‘ (ante, at 25) ‘to disparage and to injure’ same-sex couples. It says that the motivation for DOMA was to ‘demean,’ ibid.; to ‘impose inequality,’ ante, at 22; to ‘impose…a stigma,’ ante, at 21; to deny people ‘equal dignity,’ ibid.; to brand gay people as ‘unworthy,’ ante, at 23; and to ‘humiliat[e]‘ their children, ibid. (emphasis added).”


36 thoughts on “Government Became Unstoppable Yesterday Leave a comment

  1. Life on this earth is but a short time when compared to eternity.
    Mankind decides where they will be to eternity after a life of preparation on this earth. If mankind seeks personal power and dominion over others they will choose by themselves to reside in the nether world in constant frustration FOREVER. If they wish to love their neighbor and do and do good things in this world and they listen to the truthful instructions when they enter the world of angels they then stand a chance of entering heaven for eternity.
    You make these decisions as GOD only wants you as angels in his heavens

  2. RE: “What actually happened was the government became intolerably powerful yesterday. There was a fundamental, irreversible shift in the way this country is governed”

    NOT quite accurate, the shift has been occurring in small steps over quite a period; Curmudgeon, above, notes the recently re-made famous Wickard v Filburn….and Scalia noted in his dissent the majority’s decision effectively built on groundwork laid long ago:

    “The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.”

  3. Whatever, this country is not a democracy and never has been. If you think that the power grab just became popular in this century someone needs to read a little history. “The fire has always been burning”… Billy Joel

  4. I like comment about embarrassing gay peoples children, It goes to show how stupid the left is, they cannot except this simple reality. Which is at this point and time gay people cannot have children, two males cannot produce and offspring any more than two females can. A gay couple cannot produce children, biology is a bitch no law can change that. Yet five black robed idiots that have accumulated power think they can. The production of children is the central issue and that why marriage came into existence, in the past a union between a man and a women was considered marriage with the primary purpose to have and raise children and that determined whom inherited the parents possessions. There was a time that the reason for marriage was well understood, yet in this bubble headed time fundamental truths are to be denied and denigrated. I still wait for the sane to take back control, we need to stop having the inmates running the asylum

    I like comment about embarrassing gay peoples children, It goes to show how stupid the left is, they cannot except this simple reality. Which is at this point and time gay people cannot have children, two males cannot produce and offspring any more than two females can. A gay couple cannot produce children, biology is a bitch no law can change that. Yet five black robed idiots that have accumulated power think they can. The production of children is the central issue and that why marriage came into existence, in the past a union between a man and a women was considered marriage with the primary purpose to have and raise children and that determined whom inherited the parents possessions. There was a time that the reason for marriage was well understood, yet in this bubble headed time fundamental truths are to be denied and denigrated. I still wait for the sane to take back control, we need to stop having the inmates running the asylum.

    Lastly we can blame gay people for the sad state marriage is in, but yesterday decisions and they and there allies, have weaken marriage and this country, I only hope it will recover, I do know the left wants the United States and it’s Constitution destroyed, if that happen God help the world, as the left is very good at one thing and that is killing millions of people. They to love kill with great gusto the very people they claim to want to help. Lefties are truly evil.

  5. “Traditionally” it was the prerogative of the state to government to marry people, and the Federal government was expected to go along.

    DOMA was the aberration.

  6. The California Prop 8 non-decision is a bit more frustrating.

    The citizens passed a (state) constitutional amendment. Our elected representatives refused to defend the law. But, they are considered the only ones who have “standing” to defend it? This suggests that Governor and Attorney General have the power to nullify any law all citizen initiatives.

  7. RE: “It goes to show how stupid the left is, they cannot except this simple reality. Which is at this point and time gay people cannot have children…”

    FACT: MANY, many, many gay couples have children — many from prior marriages and many from adoptions (in the USA, at least, adoption agencies seem to work especially hard to place children with gay parents/couples). All things & sources considered, the proportion of gay couples who also have children is astonishingly high. Data compiled by Mark Regenerus — focusing on adopted children as they mature — suggests gay parenting is a sub-optimal arrangement(see: http://www.sciencedirect.com/science/article/pii/S0049089X12000610 )

  8. “Traditionally” it was the prerogative of the state to government to marry people

    No, traditionally it was the prerogative of the couple to form a marriage. The State began to involve itself after around 1870. (See http://thomism.wordpress.com/2010/05/05/secularism-and-the-1870s/) Curiously, this is about the same time the State became involved in education of children (naturally, on the Fichte model: http://yardsaleofthemind.wordpress.com/2013/06/12/fichte-part-5-the-wrap-up/), so we see it’s about a hundred years between the camel’s nose in the tent the collapse of the tent.

  9. Really why is the government involved in marrige at all? Isn’t only about tax? Couples (same sex or not) form unions to pool resources, mostly but not only, to raise children. So usually single people are at an economic disadvantage, the government wants to equalise this by taxation, also childless couples are at an economic advantage vis couples with children and the goverment again intervenes to equalise. Gay male couples are at the most advantage — men on average having higher income than women — by recognising male-male union goverments can equalise vis male-female.

    We need to make a clear distintion between economic union — the province of government and the gender of the indiviuals is unimportnant and marrige — the province of religion. Render unto Ceaser etc etc

  10. It is kind of funny that Scallia didn’t have the same language when the same court stripped down part 4 of the Civil Rights Acts. The CRA was passed in 2006 with 98 vote in a republican dominated senate.

    This mean that hold slaves states are now free to impose any measure they want to make sure that has few black and latino could vote.

  11. The only thing the court ruled is that particular states or jurisdictions within states can be singled out for unequal treatment by the federal government only on current data, not forty year old data. Currently the state with the largest gap between white and black voting is the sovereign Commonwealth of Massachusetts. The state with the least discrepancy is the State of Mississippi. It is time to stop living in the past.

    There are no more slave states.

  12. I agree.

    The vituperation in Kennedy’s opinion went far beyond judicial review. In a value judgement that was Obamian in its self righteous moralism, it characterized all those who don’t agree with same sex marriage as knuckle dragging, bigoted Neanderthals. This is what Scalia’s dissent addressed when he wrote:

    “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement… It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race”

    You can lateral from this to branding dissent on AGW as “flat earth deniers” a la Obama. Or dissent on anything that is at odds with the central government agenda. In this decision, SCOTUS firmly joins Obama, the IRS, the DoJ, HEW, EPA and all the rest of those that substitute their beliefs for the orderly rule of law.

    It is unstoppable. The only solution is ….

  13. YOS,

    And is this congress supposed to agree on new metrics? Republican in the house say no on everything. Boenher keep saying that jobs are the priority of the house yet they never pass or even presented a single job bill.

    Republican keep saying that Obama’s economic plan to put people back to work doesn’t work, while failing to mention that none of his proposal to create growth has been approved by congress. In national politic power the American president as very pathetic power. His power are limited to swaying the public opinion, which with this congress was not able to pass a gun bill that had about 90% of the population support and the majority of the senate vote (56-44).

    I don’t entirely disagree with the judgement about the CRA, but Under the recent condition, what they did is equal to strucking it down.

    I would be real glad if there was no more racism in the US. The problem is that the election of Obama created a rise of racism in many state

  14. The PDF has evaporated, but I remember from reading it yesterday that the start of the process this this ruling is the result of, was a conflict about tax on inheritance. In particular, in a gay marriage the widow had to pay more tax (whether it was federal of state tax, forgot).

    Not a word on the right or impossibility of gay people having kids or not, or being married.

    Just money.

  15. Why is the government involved in marriage–if you decline to recognize someone’s marriage, who is the government to order you to do otherwise?

  16. Please note that Justice Kennedy also ruled in favor of Proposition 8. Maybe he’s opposed to expansion of federal power whether it is for or against gay marriage. (The bad news is that Justice Roberts appears to be in favor of federal power whether it is for or against gay marriage.)

  17. The important thing in this is the statement:

    [T]he majority says that the supporters of this Act acted with malice

    This means the Supreme Court can now attribute any attitude they want to a law and if they believe malice was involved, the law can be thrown out. If the court decides that speed limits are created with malice to control people who own expensive, fast cars they can strike down speed limits. If the Court decides laws allowing inheritances are designed to rob the government of money and give it to undeserving relatives, and are malicious in nature designed to deprive the government of money to which it is entitled, they can strike down laws that allow inheritances (with the government harassing Apple about legitimate tax behaviour, this is not far-fetched). This is not about marriage, gay or straight. It’s about attributing motive and then striking down a law because 5 justices think the law is malicious in nature.

    Be afraid, be very afraid.

  18. Sylvan, as usual you either obfuscate of get tied up in the underwear of your own definitions. The Congress did not create a new law but reauthorized it. The difference can create a different political calculus. So please do get your facts straight.

    The republicans say yes to all kinds of stuff every year. See the number of bills they pass and the Senate and Obama threatens to say no to. Using your. Definition, all Democrats and Obama do is say no. Goos gander etc.

  19. DEEBEE,

    Since the election of Obama there has been more filibuster (over 300), more than there was in the entire history before.

    There were 283 new bills passed by the 112th congress, the least productive congress ever. 55 of them were to rename postal offices and court houses. 8 were appointment. 3 concerned wiretapping.

    Other than futility, could you provide examples of where the republican said yes to anthing?

    Obama to date only vetoed 2 bills. Reps voted 40 times to reapeal Obamacare and to my knowledge didn’t present a single bill that could stimulate the economy. Where is their economic plan? Democrate have watered down many of their bill.

  20. There were 283 new bills passed by the 112th congress, the least productive congress ever.

    In industry we never confused volume with productivity. If only we could get the number down; or even go negative…

    didn’t present a single bill that could stimulate the economy. Where is their economic plan?

    What madness inspires anyone to suppose that congress could stimulate the economy in any way other than getting out of the way by removing obstacles and roadblocks? Economic “plans” hardly ever rub noses with reality.

  21. Answer to Sylvain from other thread:
    Justice Antonin Scalia, who sided with the majority on the Proposition 8 case, wrote a strongly worded dissent on the DOMA case, which he read aloud from from the bench:
    The majority says that the supporters of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose … a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliate” their children. I am sure these accusations are quite untrue. … It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race. … It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.

    I find it fascinating that the challenge against DOMA was rooted in money. An inheritance to be exact. So this whole mess was not about marriage, but about taxes. That was the impetus for the action–to avoid paying taxes. Not gay marriage. Saving money.

  22. YOS,

    Yet anytime someone put into question the military budget they mentioned how much jobs are at stake.

    Govenment doesn’t save money it spends it. Any spending is better than any saving. Saving removes money from the economy.

  23. Sheri,

    Searching for malice in the SCOTUS decision I found two instances:

    Kennedy wrote:

    ”At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and thatit furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry”

    The other instances is Scalia’s who wrote:

    ”But the majority says that the supporters of this Act acted with malice”

    It seems to me that Scalia misread or misunderstood the intent of the majority.

    About inequality:

    ”DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, ofboth rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples,and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. 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.”

    It is not surprising that it was an economic motive that brought the case in front of the court, since economic equality is what LGBT couples want. Marriage confers economic advantages that any non-married have.

  24. I’m sticking with Scalia’s interpretation, since he was there and has the highest qualifications to interpret. He may be wrong, but I need a bit more than your thinking he could be.

    So it’s okay to worm out of paying taxes by demanding your “marriage” be recognized? Interesting. What other kinds of “marriages” can we justify to save money? (Other than the death tax–ie no more marriage, just a “widow” or “widower”, there seem to be few tax advantages to marriage–the last of said advantage seems have gone out with Reagan).

    Had the focus stayed on the original problem–death taxes–we would have gotten civil unions and not SSM. Civil unions confers all the benefits of SSM without the moral implication. Gay rights activists would have been unhappy, since for most of them, this was about demanding their behaviour be deemed moral. I truly wish the original problem of inheritances had been addressed via civil unions, as it should have been.

    If I understand this correctly, states can still outlaw SSM. This just says the Feds cannot.

  25. Sheri,

    Yes, this ruling doesn’t affect how each state consider marriage, it just says that the feds can’t create second class marriage in state where gay marriage is legal.

    There is no consensus as to if the feds has to recognize gay marriage in state were gay marriage is not legal. I suspect that Obama will declare an executive order that gay marriage should be recognized by the feds no matter of each State.

    Civil Union and Marriage are synonymous. I and most people I know are still considering marriage performed by the State has civil union, even people that got married this way.

  26. Yes, technically “civil union” and “marriage” are synonymous. However, I am willing to bet that virtually no gay people will allow the term marriage to be replace with civil union, especially if we only use it to describe their unions. Give a run–call SSM same-sex civil unions and heterosexual unions marriages. My point will be clear.

  27. Sheri,

    The majority of people don’t care if gay marriage is called civil union or marriage, including most gays.

    But there are extremist that don’t want to budge on either side. Some gays actually want the word marriage, and some conservatives that refuse the relation itself. The are the ones that cause that troubles.

    In forcing to refuse even civil union, which is what DOMA did, the anti-gay movement went too far and force an opposite reaction. Doma was in 1998 before any state authorised gay marriage.

  28. Sylvain–I would strongly disagree with your statement that gays are okay with civil unions.
    http://www.bluethenation.com/2013/06/28/no-civil-unions-arent-good-enough/

    This goes back to the race issue of separate but equal, which was not good enough with race. However, unlike race, sexual orientation is not a visible trait (though I do expect “gay and proud” forehead tattoos in the future). If it were, we wouldn’t need trials for pedophiles–we could just look for the “identifier” and jail them preventatively. Same for polygamists.

  29. Sheri,

    This is the kind of extremism I was talking about. The majority of gays are okay with civil union.

    When you have a law like DOMA people will push back.

    With what happens in Texas recently. Don’t be surprised if the State turns blue within the next to election.

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