Justice Prevailing

First of all, congratulations to anyone out there who’s gay and wants to get married but couldn’t in many states. And congratulations to anyone out there who’s gay and been married in one state but refused common rights and privileges in another state. There shouldn’t, save for a few fading, die-hard local legislatures and judges, be any real problems from now on.
To all those people who struggled for so long—some of whom are not around to see this final victory—congratulations.

The Supreme Court has found in 5-4 decision that marriage between people of the same sex is not forbidden by the Constitution. In fact, Justice Kennedy, who was the swing vote and wrote the majority opinion, seemed to be saying (in a very passionate and poetic way) that the Constitution actually grants various freedoms, both explicit and implicit—and one of the implicit freedoms is the right of anyone to marry whom they choose.

Chief Justice Roberts, the most sympathetic and benign critic of the decision, wrote a dissent in which he said the Constitution has nothing to do with this particular freedom (or, for that matter, many other freedoms previously and currently taken for granted in our society). His point of view is that he doesn’t think the Supreme Court has any business deciding this issue—Congress does. They could, for instance, add an amendment to the Constitution. And if not Congress, then state legislatures should be the deciding body—“It’s up to them, not the court.”

This is a point of view shared by many of the other justices—both conservative and liberal—depending on the case and the issue involved; “This is not our business, it is the business of the elected representatives of the people.”

But frequently, when the majority of the court feels it’s necessary to change or abolish long accepted laws or thinks that Congressional (or state) law is ignoring true justice as they (the majority of the court) perceives it to be granted in the Constitution, it ignores the wishes of Congress and state legislatures (and in many cases, I know we’re all very happy that they did—i.e., abortion, free speech, voting rights, etc.)

On the conservative side of this…   Congress (against the self-interest of many of its members) passed numerous laws over the decades putting up barriers to out-of-control campaign contributions by rich citizens or groups. The whole country, save for a minority of the rich and powerful (and a lot of members of Congress), accepted that controlling campaign contributions preserves democracy. But in Citizen’s United, the conservative majority of the court saw fit to overrule Congress and open the gates to almost unlimited contributions by corporations, PACS and individuals—which has already sped up the almost inevitable destruction of democratic elections (and thus democracy itself).
And it wasn’t too long ago that the conservative majority of the Supreme Court selected George Bush Jr. as President. So much for the wishes of the people.

Naturally, Mr. Scalia—the self-appointed scourge of God—bitterly disagreed with the majority opinion in this most recent decision, which, he said, was just creating law out of thin air and the majority’s own emotional wishes—without any basis in established precedent or the Constitution. I think he called Kennedy’s opinion “fortune-cookie reasoning” (as opposed to a cool, logical, reasonable interpretation of the Constitution).
So, when it’s about the very rich and powerful being able to subvert democracy by pouring money on their favorite candidates it’s “sound reasoning” based on the Constitution. When it’s finding the right in the Constitution for same sex couples to marry, it’s emotional, hysterical and has no basis in law.
Scalia seems to have a natural abhorrence of freedom—except when the particular freedom the court could grant suits the way he thinks our society should operate.
Freedom (except for the rich and powerful—the rightful owners of America) scares him. The masses, in their ignorant, emotional way, don’t really have the ability or even the right to decide what’s good for them. And they often don’t (have the ability)—but that’s one of the inevitable evolutionary stumbling blocks of democracy.

Actually, I understand Scalia. I don’t sympathize with him but I understand him. I know that a lot of my own narrow and judgmental attitudes and behaviors arise from my own fears. Maybe—and here’s some fortune-cookie emotional reasoning for you—Scalia is full of fears that he needs to control by exercising control over everyone else. However, unlike Mr. Scalia, I’m not (and that’s probably fortunate for society) in a position to determine the fate of hundreds of thousands of people—millions as time goes on.

In the end, maybe Roberts and Scalia are right. It may be that the Constitution doesn’t have anything to do—one way or the other—with the freedom or right of same sex couples to marry. The Constitution was written (and amended) during times when even being (let alone being a practicing) homosexual was universally considered to be a grievous sin against god; And homosexuals having the legal right to marry? Absolutely inconceivable.
And, of course, there are millions of Americans now who find this decision ungodly, and thus, completely un-American. I know several people, Christian and Jewish (who are among the most decent, understanding people I know) who may see the basic, human justice in this decision but are probably saddened or possibly even repelled by it. Maybe that will change with time–maybe not.

Obviously the constitution doesn’t guarantee same sex marriage. It just—according to Kennedy and the majority in this decision—doesn’t forbid it. But neither does the Constitution specifically forbid hundreds of freedoms we take for granted. It’s a framework—a working manual; one that has great flexibility built into it and system of government it defines–but still is limited by the time and place in which it was written.

Roberts and Scalia may be right—why drag the Constitution into this? But, adopting the old and enduring wisdom that justice should always be tempered with mercy (and other less concrete and more spiritual values), it seems to me that this decision is truly “just” in the highest sense of the word (and deed).

In the end, it’s not the Constitution that guarantees the freedom of same sex couples to marry, or, for that matter, hundreds of other freedoms we take for granted or hope to realize some time in the future. What guarantee’s this and other freedoms is the founding document of the country—the one from which all other American virtues, rules and laws (including the Constitution) flow—or should flow—The Declaration of Independence:

“…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness; That to secure these rights, Governments are instituted among Men…”

All our freedoms, including the right to marry whom you love, are guaranteed by this document, which is the beating heart and yearning soul of America. It lies beneath and rises above the Constitution and contains in it the mercy and humanity that, in the best of all possible worlds, should always temper justice.

Once again, congratulations to all the people who have just been guaranteed their freedom to marry in every state in the Union and thus given the right to the legal and financial benefits of this state under the eyes of the law.

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