The outcry against five justices who, abandoned Christian law as articulated in the Bible (the judaeo-christian code was the bases of the Constitution and our culture), all constitutional law prior to the 14th Amendment to the Constitution in 1868, and the vast majority of her present citizens, making something legally right that has been forbidden in virtually every country in the world for 6,000 years, is overwhelming. A practice condemned (often to death) by every major world religion. This, all in the face of God the Almighty. The piety of these justices cannot be overstated.
This column must, however, restrain itself to the blatant judicial attack on the Constitution itself especially, Article I, Section 8, and Amendments I (freedom of religion) and 10 (enshrining federalism), all of which were omitted in the justices’ decision. It leaves the practice of same-sex marriage as a cultural or religious perversion, or even the fairness issue, for another time.
Many ask, “On what constitutional grounds was same sex marriage ruled by the justices to be constitutional?” Almost none!! Under the Constitution originating with the Founding Fathers it could never have been. It is the perversions of the document that came nearly two centuries later that has resulted in the justices ruling as they have.
Let us begin with some basics. The first and most pronounced division of power recognized by the Fathers was between the states and the federal government called federalism. Basically state powers included everything except what was listed as federal power primarily in Article I, Section 8, because all agreed that the nature of all national governments was to grow and the Constitution was designed to specifically limit it doing so. The word marriage, or anything like unto it, is not included in that list nor added subsequently by amendment through Article 5. Therefore the federal government has no jurisdiction in the matter and it is entirely a state matter. That truth is most profoundly stated in Amendment 10 of the Bill of Rights. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Simplistically federalism meant that the Federal Government would handle mostly foreign affairs and the states domestic affairs.
Still fearing that the federal government would exceed its listed powers the states made a list of things that the federal government could never do to them. That list became the Bill of Rights. Article I of that list denied the federal government any authority in religious matters. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press,….” Clearly citizens can refuse to perform marriages, or even provide flowers for, gay marriages on religious grounds. Clearly citizens, ministers or otherwise, may write or speak out against the practice no matter what the justices say.
After the Civil War reentry of southern states into the union required their agreeing to extend all constitutional rights to their black population as well. Amendment 14, Section 1, disallowed states from depriving “any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the law.” To the law makers of the day this was essentially the Bill of Rights and little more, but the phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow; and grow it did like a cancer, many times beyond original intent — each expansion becoming the rational for even more expansion. Each phrase took on a life of its own. The justices, sometimes with tortured logic, were able to rule that a state may not deprive their same-sex couples from due process and equal protection of the law. Heterosexuals sometimes get advantageous by their marriage: taxes, adoptions and etc. also wanted by the homosexual community. These two nebulous phrases “due process” and equal protection” are the hinges of the door of the whole gay agenda.
So it comes to this. If a judge gives weight to these terms, not introduced into the Constitution until 1868, seventy-eight years later and thereafter altered and expanded as needed and never understood by the writers of the amendment in the light of radical change, he will use it to make marriage denial for same-sex couples unconstitutional. To do so, however, he must disregard Article I, Section 8, and Amendment 1 and 10 and utterly discard the philosophy of federalism. Such judges endorse the movement to grow the federal government, righting all wrongs and solving all problems through the central government—just the opposite of what the Constitution is supposed to do. Apparently we have five of our nine justices in this category.
Constitutionalist judges, on the other hand, value these basic and essential components of the Constitution and will rule otherwise. Since marriage, or anything remotely similar to it, is nowhere mentioned in the Constitution the proper place for it, as for everything else not specifically given to the federal government, is at the state level. Would that mean that some states would allow gay marriage? Perhaps this in time would come about but only by the vote of the people in their states, not by unelected and unaccountable Supreme Court justices who have defied their own constitution in their most recent decision.
To read more of Dr. Harold Pease’s weekly articles, visit www.LibertyUnderFire.org.