Posted on 04/29/2015 6:48:22 AM PDT by xzins
Our friend Quin Hillyer posted an interesting article in National Review in which he parsed at some length the past opinions of Supreme Court Justice Anthony Kennedy, the perceived swing vote on the same-sex marriage case argued before the Court yesterday.
Many conservatives have been pessimistic about the prospects of the preservation of federalism and the power of states to regulate marriage, and Hillyer acknowledges Kennedys paeans to personhood and dignity, and reviewing his long history of rulings that consistently expanded the rights of homosexuals at every opportunity, many observers consider it a foregone conclusion that his decision in the April 28 cases will favor the same-sex-marriage side of the debate. They think it obvious that Kennedy now will join the courts four uber-liberal justices in declaring, once and for all, that homosexual marriage is a right protected, for all Americans everywhere, by the U.S. Constitution.
But says Hillyer, Kennedys willingness to recognize the personhood and dignity of homosexuals is balanced by his recognition of and commitment to upholding principles of federalism.
And it was on exactly the principle now before the Court state power to regulate marriage that Kennedy helped make the majority that overturned the federal Defense of Marriage Act or DOMA.
Hillyer points out that in the full text of his Windsor decision invalidating DOMA Kennedy lends far more ammunition to the state regulation of marriage side.
In his Windsor opinion says Hillyer, Kennedy so repeatedly emphasizes state authority on marriage, both definitional and regulatory, that there seems no intellectually honest way for him now to invalidate state laws that, yes, define and regulate marriage.
Indeed, Hillyer noted, even Kennedys hymns to personal dignity, at least in Windsor, were sung only in the context of the power of individual states to recognize such dignity despite DOMAs alleged determination to trample it. In other words, Kennedy painted the dignity not as something conferring a freestanding right to a particular definition and practice of marriage, but only as something a state might choose (or, by inference, choose not) to confer as a recognized privilege.
Finally, observes Hillyer, Kennedy wrote this as his concluding substantive sentence: This opinion and its holding are confined to those lawful marriages. Meaning his finding was confined to upholding the marriages conducted according to the laws of states that had legalized same-sex marriage, and did not impose upon states where same-sex marriage had not been recognized a new obligation to legalize such marriages.
Many conservative commentators seem to take defeat on traditional marriage as a foregone conclusion; we join Ryan Anderson of the Heritage Foundation and Quin Hillyer in disagreeing.
As Anderson noted in a post-argument blog post the liberal media did not cover the oral arguments and questions by the Justices as providing conclusive evidence that a win for same-sex marriage was a foregone conclusion.
Whats more, noted Anderson, it does no good to publicly make such predictions. Between now and decision day we conservatives should do whatever we can to influence Kennedys vote and to prepare the American people to view a bad ruling as judicial activism that is illegitimate.
Announcing we've already lost helps on neither of those goals, says Anderson and we agree wholeheartedly with that observation.
Using Kennedy and Breyers own words to demand a decision that is intellectually honest and consistent provides a framework by which they can uphold state marriage laws, and, at least gives us a fighting chance of preserving traditional marriage laws in most states.
We prefer to fight, and between now and when the Supreme Court decision is issued we plan to fight along the lines suggested by Heritages Ryan Anderson; but if you'd rather predict that we'll lose, well, you can help guarantee that outcome, and have the satisfaction, such that it is, of being right if we do.
So, how can we influence Kennedy's vote? Call him up off of some website phone number? Blast fax the SCOTUS?
As far as preparing the American people...yeah, we can be ready to declare that 5 black-robed tyrannts don't speak for the voters or the nation. We can lift up traditional marriage as God-ordained and only between one man and one woman. We can challenge about birth rates, bad influence on kids, importance of raising children with a mother and a father..and all these things.
We can be ready to make a big stink about it, if it happens.
My point has to do with the justices who argued against procreative argument. They said that not all couples are fertile or desiring children so procreation is, according to them, not a requirement for marriage.
First, they are taking exceptions as a rule, but they get away with it. In reality, men and some women are able to reproduce into advanced years, and some couples, seemingly unable to procreate, has suddenly gotten pregnant out of the blue. And with modern fertility medicine, oftentimes fairly regularly.
However, even if infertile, a man/woman pair upholds the ‘image of procreativity’ in that they are what a procreative pair looks like.
[[However, even if infertile, a man/woman pair upholds the image of procreativity in that they are what a procreative pair looks like]]
And I took those valid points further, by stating that marriage is not just about fertility, it also contains a requirement/condition that the two people looking to sign a contract with the government be moral people and not deviants- immoral deviants seeking ot marry their sisters, mothers or fathers, are not allowed to be married because they do not meet the requirement for morality- nor do pedophiles, necromancers, bestiality deviants, etc etc etc- Gay sex is an immoral act- just as bestiality and pedophilia and all the other deviant sex acts are-
IF the supreme court is going in and changing gay sex to mean it is moral, then they are legislating from the bench by picking and choosing which of those clearly immoral sexual acts they no longer think it immoral Despite the fact that those acts violate the natural order of things-
You bring up valid points to counter the ‘sterile hetero’ marriage issue, and these points definitely should be argued as well- however, the REAL issue boils down to the supreme court trying to redefine what is moral and what isn’t- if they can arbitrarily declare homosexuality is no logner immoral, and that the practitioners of homosexual sex deserve respect and dignity by beign allowed to marry- then the court MUST take the immoral label off ALL deviant sexual practices- they can’t just pick and choose which sexual acts are deviant and which aren’t- ESPECIALLY when that act is a CLEAR violation of the natural order of things
Both these positions need to be argued in courts- and the supremes should be asked how it is that they feel they have the right to declare what is moral and what isn’t when it has been established for 1000’s of years that anything that violates the natural order of procreation is deviant- the case should be made that any decision to allow gay marriage is judicial legislating from the bench- The liberals on the bench should be shamed into DOING THEIR JOB objectively if possible!
Exactly what I've been predicting for months. And both votes will be 5-4, with Kennedy in the majority in both.
Many of the same argue that promoting 'LOVE' is what marriage is about. These fools seem to think that government is in the business of promoting 'LOVE'. To quote the Leftists like 0bama: "Love Is Love" or "One should not be discriminated against because of who they "LOVE". Of course, these Cultural Marxists leave out the part that this "LOVE" include sexual activity.
Society has never promoted and granted benefits and privilege to subjective emotions like "LOVE". Marriage has ALWAYS been about potential procreation and child rearing -something that disordered homosexual activity has NO potential to contribute to society.
Grand Parents "LOVE" Grand Children, Brothers Love Brothers, Sisters "LOVE" Sisters yadda yadda yadda BUT they do not get any benefits from society for doing so? WHY? Because they don't engage in sexual activities with each other? <[> Love is love, my ass!
Anthony Kennedy is an odd duck. He’s decent on Human Life issues, but lousy on private property rights. I have no idea what he’ll do here.
Defeatist?
Prior or Post O’Care ruling from the same idiots??
Did ANYONE ‘dare’ bring up the 9th/10th Amendment...’bout the only thing I’ve heard are ‘precedent’ cases (so the whole of Federalism and State’s rights is mostly a moot point)
Sorry, I don’t trust Congress, let alone the oligarchy in black robes, to understand the limits of their powers vs. our inalienable Rights.
It’s just another attempt to redefine the meaning of words to make those words meaningless.
Skip step one. The judiciary is a bunch of political hacks in black muumuus. They just have a better theatrical routine and costumes.
Caesar’s gonna do what Caesar’s gonna do.
Those black-robed scumbags don’t give a damn what we think.
I am not a defeatist. I am a realest. I deal with realty, not fantasy. I believe that the fix is already in or it would never have went to the Supreme Court.
Could be. We’ll see. The more I think about it, the more I see Scotus coming out with a states rights decision only. It takes the monkey off their back, and the 14th amendment means that those marriages have to be recognized nationwide. So Scotus gets to have its cake and eat it too.
I hope that you are correct. Abortion and obamacare taught me a lesson about the Supreme Court.
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