The Supreme Court of the United States over the last to days has systematically destroyed Common Law and Statutory Law. With the destruction of Common Law regarding marriage the Court in essence announced, "The Supreme Judge of the World has made his decision, now let him enforce it." The Court overturned over 5000 years of Common Law and 1500 of English Common Law in order to make its decision.
Marriage is defined in Western tradition as a union between one man and one woman. In the last several centuries, because of Roman Catholic teaching, even polygamy, which has been accepted and promoted as praise worthy in many global cultures, has been outlawed. The Court acknowledges this history. As justification for its ruling it points to Cicero and others who stated that marriage is the basis for the state. The Court fails in its history lesson when dealing with the "change" in marriage over time. It points to the fact that the status of women has been elevated over time, but the Court fails to acknowledge that that is exactly what happened, the definition of marriage never changed, the status of women was only elevated.
The Court also noted that they have always affirmed a right to marriage - which is actually incorrect. The Court has, up until yesterday, always affirmed the right of one man and one woman to get married, while striking down other types of marriages. Murphy vs. Ramsey and Davis vs. Beason declared "Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth,...than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." In multiple Court cases polygamy was declared bans constitutional.
Using this reasoning the majority claims that they may overturn the understanding of marriage present at the ratification of the 14th Amendment using the 14th Amendment. After all they claim, they did so in Loving vs. Virginia. In reality they did not change the definition in Loving, they only stopped the State from excluding interracial unions from an already defined institution. They only discarded White Supremacy from Virginia's marriage laws, the definition of marriage did not change.
The Court found the right to marry hiding in the penumbra of the 14th Amendment along side the right to abortion. The only question is, is there actually a Constitutional right to having the State even recognize traditional marriage? There does not appear to have a Constitutional right to State recognized marriage. Also the Liberty section of the due process clause cannot be where such a right is hiding because as Thomas notes, "Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits." Yet we find a right to discard the common law -something traditionally only done by the legislative process not the Courts which use it as a basis for their rulings (but I guess we are discarding tradition) -- and change definitions hiding behind liberty.
Ironically the Court ruled on June 15th that there is no Constitutional right for a married couple to live together (Kerry vs. Din). Despite this ruling they were willing to say that there is a Constitutional right to have a state recognized homosexual marriage.
I will leave you with Scalia's remark, "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
The Court has overturned Marriage, Law, and Tradition. Both Law and Common Law create order, and yet we have lost both.
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