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Pro-family arguments at Supreme Court “gay marriage” hearing very frustrating, non-aggressive.
Playing to “conventional wisdom” that has not worked so far.
Hope that Justices aren’t eager to radically change America. Entire case lacks legal legitimacy.
POSTED: May 1, 2015
On Tuesday, April 28, 2015 the nine US Supreme Court Justices heard arguments and questioned the lawyers on both sides of the “gay marriage” issue. (See our previous article, “Ten things you need to know about the Supreme Court ‘gay marriage’ case.”) Sadly, this was an eye-opener into how distorted our judicial system has become.
Officially the hearing was divided into two sessions. Part I was to address the question: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” (In other words, is there a Constitutional protection already in place for “gay marriage”?) It was 90 minutes long. You can read the transcript HERE.
Part II was to address the question: “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” It was 60 minutes long. You can read the transcript HERE.
This case was argued seriously and soberly by both sides. That’s the initial problem. Reading the transcripts, one cannot help but think that if someone from thirty years ago – or any previous time in American history – were to see this, he would think that they had all lost their minds. Taken in any historical context, these “same-sex marriage” concepts, ideas, and arguments are profoundly unhinged.
Ginsburg and Kagan refused to recuse themselves
In addition, Justices Ginsburg and Kagan did not disqualify themselves from this case despite their obvious and well-documented bias, although federal law requires it. That is almost universally considered a violation of the Fourteenth Amendment’s “due process” clause. The arrogance of these two ultra-liberal Justices is abominable.
At least one outside group filed a formal Motion for Recusal against Ginsburg and Kagan, which, to our knowledge, was ignored.
The arguments: Flawed pro-family strategy
Yes, there are pro-family writers who thought things went extremely well. We disagree. There are a number of serious problems with the way this case was argued.
1. No one specifically addressed the Fourteenth Amendment. Despite the fact that this case is about the definition of the Fourteenth Amendment to the US Constitution, nothing of substance was discussed about it – by attorneys or Justices. It was only addressed peripherally and mostly inaccurately.
The pro-family position here ought to be very simple: For Part I: Regarding the “equal protection” clause, under the law every person can only marry someone of the opposite sex. The marriage laws apply to every person equally. And regarding the “due process” clause, everyone gets the same application of those laws. No legal expert we’ve consulted has disagreed with us on this reasoning. But instead, the discussion was mostly of whether an imagined “right to marry” exists that must be protected.
For Part II: The “full faith and credit” clause was never meant to be used to alter the meaning of the word marriage (e.g., to include same-sex marriages, plural marriages, incestuous marriages, marriages to young children), but only the application to a marriage case (or a divorce, etc.,) where the meaning of the word marriage was commonly agreed upon. But instead, the pro-family lawyer gave a confusing argument about states being able to recognize any marriages they wished.
2. The hearing almost exclusively discussed policy issues, unrelated to the Constitutional question. Almost all of the discussion was about the definition and history of marriage, along with adoption issues, the democratic process, “animus,” discrimination, how marriages help children, the emotional issues of being denied marriage, and the like. The other side tried to shoehorn in any possible connection to the Fourteenth Amendment. As one commentator said, the hearing was basically a policy argument in search of a constitutional theory.
3. The pro-family side accepted the Left’s premises on homosexuality and “gay marriage”
As Ronald Reagan said, “There you go again …”
The major premise of the other side is that “gays” are a natural “class” of people who simply fall in love with those of the same sex. Thus, denying them “marriage” rights constitutes illegal discrimination and cruelly forces them into second-class status. It has become a powerful propaganda device.
Unfortunately, our lawyers have also accepted that premise in all their writings, conversations, and arguments – or at least never refuted it.
But it’s a fiction that is easily debunked with documented facts such as the horrible medical consequences associated with homosexual behavior: numerous diseases, addictions, mental health problems, high rates of domestic violence, lower life expectancy, suicide, damage to children raised in same-sex households, etc. Plus the legitimate point that such behavior is an immoral and unnatural perversion.
But none of that has ever seen the light of day. The pro-family establishment has internalized the idea that any perception of “animus towards gays” (i.e., telling the truth) will alienate the Justices. Of course, the opposite approach has never been tested, so we don’t really know. All we do know is that the cautious strategy has failed time and again.
Justice Kennedy – the likely deciding “swing” vote
Justice Anthony Kennedy is widely seen as the “swing” vote in this case (since Ginsburg and Kagan are still part of the mix). Thus, this strategy was an effort to moderate Justice Kennedy’s historic support for so-called “gay rights” (going back nearly 20 years) without regard to the constraints of the Constitution. The blatant political mindset of Kennedy and other Justices adds yet another layer of illegitimacy to this case.
But will this strategy of pandering to Kennedy’s biases instead of forcefully telling the truth actually work? It hasn’t so far in the Windsor case and similar cases. Kennedy’s questioning here implies a bit of softening on his hardcore federalist ideology on this issue. And his questions to the attorneys appear to reflect concern about unelected judges forcing “gay marriage” on all of America after 30 states passed constitutional amendments against it. (Actually, the judges' questions were generally better than what our own attorneys presented.) But it could simply be posturing, and his past actions are not reassuring at all.
What happens now?
According to reports, the Justices will privately vote on the two questions today (Friday, May 1). Then they will begin having their clerks draft their opinions for them. The final ruling will probably be announced in the latter part of June. We’re told it’s possible for a Justice to change his vote between now and then.
As noted above, this case is illegitimate on several levels. Moreover, we are living in a system going back many decades where most of the nine Justices have become arrogant oligarchs who rule America with their feelings and have little regard for what the Constitution actually says.
We are not feeling good about this. Should the worst happen, the first duty of good Americans is to consider this the way Abraham Lincoln treated the Dred Scott decision: boldly and publicly ignore it.