Judicial Power and the Marriage Cases

It’s likely that the U.S. Supreme Court will announce its decisions in the gay marriage cases soon, possibly on Thursday.  Don’t expect the statutes in question to survive, though they should.  To me, the California case about gay marriage has always been about free speech and political liberty.  It’s a very easy case to decide correctly, in view of this statement by the California Supreme Court:

The Attorney General’s contention … rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy guaranteed by article I, section 1, and on the due process and equal protection guarantees of article I, section 7. As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”

So it’s basically a matter of semantics.  But if you’re a judge who likes to exercise power, there’s not much of a thrill in NOT overturning laws.  It I were a gambler, my money would be on the Supreme Court overturning Prop. 8, and lecturing us about bigotry too.  And maybe next year they’ll tell us that it’s unconstitutional for a state to refuse to call a woman a “father” (or a man a “mother”) if that’s what they want to be called.  Or unconstitutional for a state to refuse to call an illegal immigrant an “undocumented visitor”.
Here are a couple quotes about judicial power that seem pertinent.  Both are from judges who later became politicians: Robert Yates (a delegate to the Philadelphia Convention in 1787), and Robert Hale (a congressman involved in the debate about the Fourteenth Amendment in 1866).  Yates said:
Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpared to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise.
Likewise, Hale said:
[I]t is the inevitable tendency of power always to augment itself; to acquire additional power by mere amplification and accretion. Power goes on to increase and arrogate to itself power, from time to time, by extension and enlargement. That has been the tendency under the Constitution as it exists. The principle that it is the part of a good judge to amplify his jurisdiction has been not only a maxim of the courts but it also seems to have been the principle and maxim upon which the Federal Government has operated.
So, expect the age-old definition of marriage to go down the drain this week, in the California case.  It will ostensibly be done “for the children” so they won’t feel bad about what’s written on their parents’ certificate, though the children of polygamous families won’t feel any better until they get a similar ruling from the Court.  The official recognition of gay “marriage” will encourage vast numbers of people to establish families with children who will never benefit from having a mother and father.  We will be yet another step closer to judicial dictatorship, and this should be plainly apparent to both straight and gay people alike.
As for the Defense of Marriage Act (DOMA), this is more than semantics.  It involves tax benefits.  Expect DOMA to go down the drain this week too (see the Yates and Hale quotes above).  Instead of waiting for Congress to “evolve” up to the judges’ level, the Court will yet again pretend that the Equal Protection Clause is not merely a restriction on the states, but instead applies also to the federal government via the illegitimate doctrine of “substantive due process”.
At some point soon after these decisions, we will have to face the fact that the Constitution has been reduced to meaningless drivel.  And conservative judges will have to counterbalance the liberals by pushing their policy preference.  And judicial nominees will have to be forced to disclose what policies they like and don’t like.  The rule of law will be destroyed, unless you believe that “law” means the subjective beliefs of judges.  In any event, democracy is on the line this week, and its prospects are bleak, in my opinion.

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