When twelve separate federal courts and seven state courts come to the same conclusion that prohibitions against marriage, based on sexual orientation, are unconstitutional, it's time to stop whining about activist and rogue judges, especially when there has not been a decision upholding the ban.
It is long established that the right to marry is embedded in the right to liberty under the XIV Amendment. Interpreting laws that affect fundamental rights of citizens, especially suspect classifications is the role of the judiciary, and not the legislature. This is made clear in Article III.
Moreover, where the legislature operates on majoritarian principles, the judiciary has been specifically designed not to operate in this fashion because constitutional rights are not subject to the whims of popular opinion.
Constitutional challenges to marriage laws are properly decided in courts of law. In each of these cases the courts properly framed the issue of whether the prohibition of marriage, based on sexual orientation is substantially related to a compelling or important government interest. And in each case the state could not present such an argument.
By the way, Judge Jones was appointed to the bench by George W. Bush. He's also a devout Lutheran.
The issue (not the PA case as Governor Ridge indicated that the commonwealth will not appeal the decision) will eventually come before the Supreme Court probably in a few years. There will be several consolidated cases. Perhaps the composition of the Court will be different, but you can probably bet that the opinion will be assigned to Kennedy. Don't be surprised if Roberts rules that same-sex marriage bans violate the due process and equal protection clauses and it's a 6-3 vote. He can see the precedent of cases in the past 10-15 years and has a unique sense of his historical standing as Chief Justice, and he wouldn't want to be caught on the wrong side of history. It will be hard for him not to apply heightened scrutiny in his review.
You can't argue several judges coming to the same conclusion as evidence they got it right. Gays having the "right" to marry is no more embedded in the XIV Amendment than woman having the "right" to have an abortion is found in IV amendment. The Constitution says what it says and anything else should be left up to the states. But that's where activist lawyers and judges, and their liberal supporters, twist and pervert the Constitution to say anything they want it to say. The laws are eventually no longer based on what the Founders actually intended but on case precedent based on the bone headed ruling of one judge or another. When you have a group of supreme court judges all looking at the same case, and going by the same laws, and yet coming out with different rulings, that shows you some are actually going by what the law says and others have some other agenda. And what the hell does that mean, the "wrong side of history?" Even if the majority of people eventually came to believe gay marriage was OK, and it was the law of the land across the nation, it wouldn't automatically make it right.
Last edited by IvyLeague; 05/22/1410:07 AM.
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