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Sunday, 29 November, 2020

Same Sex Marriage

Date: 10 September, 2015

By: Chief

Images it a right or is it a wrong? I suspect the answer to that question fully depends upon your own point of view.

Not that our debate or discussion of this particular issue matters because our very own U.S. Supreme Court in a cliff hanger decision (5 to 4 vote) decided that not only is same sex marriage a right — it is a fundamental right. Furthermore, the court, in issuing its decision decided that We the People are not:

to come to the decision that five unelected, unaccountable federal employees did. By the way those five unelected federal employees were the majority in the case of Obergefell vs. Hodges, 576 U.S. _____, (2015). It is enough to gag a maggot.

What is the big deal anyhow

So what is all the hoo hah about anyway? It is not about a perceived right of gays and lesbians who want to get married. Nor is it about a perceived right of gays and lesbians enjoying the fruits (benefits) of marriage. Furthermore, it is certainly not about a perceived right of gays and lesbians who already are legally married to have their marriages recognized nation wide (reciprocity).

The very big deal is how gays and lesbians converted these three perceived rights into three fundamental Constitutional rights. The "how" is quite simple — they ... er ... back doored it. Instead of engaging in intellectual debate with other members of the towns and communities wherein they live and thence contacting their representative and expressing how they want their representative to vote in order that a state law maybe:

The same holds true with a state Constitution, which by the way, is how things are done in a Constitutional republic. Oh no. The gays and lesbians decided not to invoke the legislative process and by so doing engage We the People as well. No. The gays and lesbians went through the back door (I'm told they do that a lot) and got all the state laws on marriage thrown out the window — just for them.

Now, regarding marriage, the Constitutional law of the land is now (quoting the Syllabus of Obergefell vs. Hodges page (4 - 5)):

"The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same- sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

"[. . .]

"The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character."

There you have it, stroke of the pen ... law of the land.

And that is the problem.

But what about . . .

. . . My Constitutional right to have matters of public policy (law) or proposed law be decided by me and the other members of my community and state via our:

In short what happened to my right (and yours) to:

I can tell you what happened to them — they got flushed down the toilet (flush twice - it's a long way to Washington, DC). The really sickening part of this whole disgusting affair is the people who flushed my (and your) rights away are the exact same people whose job it is to tell us what the law is. It is not the job of judges or justices to make law. Period.

I'll say it again — my (and your) vote only counts if some frigging lawyer says it does. That is beyond the pale.

Thomas Jefferson, author of the Declaration of Independence, to me the greatest document in all of human history, wrote:

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law', because law is often but the tyrant's will, and always so when it violates the right of an individual."

Gee, that somehow reminds me of exactly what has transpired here.

If you look in the Constitution you shall find no clause about marriage. That is because the Founders were smart enough to leave that up to the several states to work out.

And now let us hear it for the dissenters

As I wrote earlier the vote was 5 in favor of gay marriage and 4 against gay marriage. We already know what the majority basically said but what did the dissent (the 4 against) have to say about gay marriage? Well, allow me to quote from some of the dissenting opinions.

Quoting Roberts, C.J., Scalia, J. and Thomas, J., dissenting in Obergefell vs. Hodges (page 2) in pertinent part:

"[. . .][T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise 'neither force nor will but merely judgment'. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered)."

Hear, hear for the Founders. Brilliant, simply brilliant.

Quoting Roberts, C.J., dissenting in Obergefell vs. Hodges (page 13) in pertinent part:

" 'The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely', we later explained, 'has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws'."

Good thinking Mr. Chief Justice. Tell us what the law is — but do not make law.

Quoting Roberts, C.J., dissenting in Obergefell vs. Hodges (page 22) in pertinent part:

"The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs."

Rock on Mr. Chief Justice. Absolutely right on point.

Moving right along quoting Scalia, J., dissenting in Obergefell vs. Hodges (page 2) in pertinent part:

"It is of overwhelming importance, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact - and the furthest extension one can even imagine - of the Court's claimed power to create 'liberties' that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

Like him or not, when Justice Scalia wields his pen, watch out, venom will flow from it. Yes sir, that old boy can write. And the beauty of it is — he is right.

Here is another one. Quoting Scalia, J., dissenting in Obergefell vs. Hodges (page 9) in pertinent part:

"With each decision of ours that takes from the People a question properly left to them - with each decision that is unabashedly based not on law, but on the 'reasoned judgment' of a bare majority of this Court we move one step closer to being reminded of our impotence."

Damn. He is good.

Quoting Thomas, J., dissenting in Obergefell vs. Hodges (page 1 - 2) in pertinent part:

"Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect."

So true Mr. Justice. Sadly, so very true.

Quoting Thomas, J., dissenting in Obergefell vs. Hodges (page 16) in pertinent part:

"Had the majority allowed the definition of marriage to be left to the political process - as the Constitution requires - the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority's decision short-circuits that process, with potentially ruinous consequences for religious liberty."

Another smack-dabber for Justice Thomas. There is far more to liberty than simply having your cake and eating it.

In its decision, the majority discusses "dignity" and same sex marriages at length. Here is what Justice Thomas had to say about that. It is truly rich. Quoting Thomas, J., dissenting in Obergefell vs. Hodges (page 16 - 17) in pertinent part:

"Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that 'all men are created equal' and 'endowed by their Creator with certain unalienable Rights', they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built."

Dissecting the majority's opinion with a scalpel. Justice Thomas would have made an excellent surgeon.

Quoting Alito, J., dissenting in Obergefell vs. Hodges (page 1 - 2) in pertinent part:

"Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State."

I would have to say the good Justice hit a home run on that statement.

Quoting Alito, J., dissenting in Obergefell vs. Hodges (page 7) in pertinent part:

"Today's decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

"It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."

Not only is this probably true it is also scary as hell. Another nail in the coffin for free speech.


The gays and lesbians were smart, very smart about this. They knew or were told that it is quite a bit easier to change the minds of a minimum of five people (the bare majority on the Supreme Court) than it is to change the minds of a few million voters and their state representatives. And that is exactly what the gays and lesbians did.

This story, indeed this case and this issue are far, far, from over. It will be generations before the vast majority of We the People are comfortable with gay marriage — if ever. But we shall see what we shall see.

As for myself I have no problem with gay marriage. I do, as I wrote earlier, have a major problem with the way it was accomplished. And I suspect that the 'back door' visit to the Supreme Court shall come back to bite gays and lesbians dead square in the back door. There is a lot of truth in the old saw 'what goes around comes around'.

My advice to gays, lesbians or anybody seeking marriage is — if you really need a companion — get a dog.

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