Back in Action


The United States Supreme Court will review the decision of the United States Ninth Circuit Court of Appeals, striking down Proposition 8, a 2008 state constitutional amendment, providing that “only marriage between a man and a woman is valid or recognized in California.”

A federal district court judge, Vaughn R. Walker, who is an admitted homosexual, ruled that Proposition 8 is unconstitutional on the grounds that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.

The Ninth Circuit Court, the most liberal and reversed court in the nation, without much surprise affirmed the trial court's decision.

Now, the United States Supreme Court has gotten into the act.  It has granted a writ of certiorari to hear the case.  This is deathly serious, because the Court could render a decision that profoundly affects the nature of American culture. 

Homosexuality has never been viewed by most Americans as simply “an alternative lifestyle.”  Contrary to pronouncements of the American Psychiatric Association in 1972 and of the American Psychological Association in 1974 that homosexuality is not to be regarded as a personality disorder, most Americans appear skeptical and unconvinced. They don't approve of homosexual behavior and don't think it should be normalized.

Even if one assumes that the majority of mental healthcare professionals are correct in their conclusion that homosexuality is not abnormal behavior, does this not beg the legal and cultural question?  If truth is, as relativists tell us, nothing but a social construct, then why should a society not be able to adopt the legal, social, and cultural boundaries it pleases?  Why should an elite body, such as the United States Supreme Court, be entitled to substitute its own vision of society in place of that of the people at large?

“Oh,” you say, “it’s a matter of our federal constitution, which insures due process and equal protection to all citizens.  If two homosexuals wish to marry, they should therefore be allowed to do so."  Well, not so fast.  It is a fact of history that the Fourteenth Amendment was primarily intended to protect former slaves.  Endowing it with authority over marital rights is stretching its meaning beyond what Congress intended when proposing the amendment or what the state legislatures intended when they ratified it.  Jurists and scholars who give deference to what they call the “original meaning” of the amendment would not, needless to say, be favorably impressed with the expansive interpretation of the clauses elaborated by the Ninth Circuit.

But, again, let me play the devil’s advocate.  If one were to approach the text of the United States Constitution as a philosopher like Jacques Derrida or Michel Foucault, and argue that the document's meaning can and does change over time, should it not still be a large part of a jurist’s task to defer to the traditional values and meanings of the prevailing culture? How is it just for any court to substitute its own values for those of the culture in which it as an institution exists, and to do so in the absence of explicit written authority? That smacks of subversion and sabotage and of little else.

The majority of the people of California prefer not to live in a society where homosexual marriage is a norm.  I see nothing morally offensive about their preference.  I do think, however, that it would be tyrannical for a court – any court – to make that cultural choice for the people of the Golden State or any other. 

It does not follow from my point-of-view that homosexuals should be abused or mistreated.  They should be accorded the same elemental respect and dignity owed to any human being.  But they constitute a minority and should not be allowed, as they please, to alter the traditional meaning of marriage, the family, and American social mores.  Would it not otherwise be tantamount to “tyranny by a minority”?

Yet, with this having been said, I’m not even remotely optimistic about what the Supreme Court may decide in this case or in any other. I tend to think that courts follow the latest fashions and that they are greedy for power. They often seem to intrude upon legislative prerogatives.  When Supreme Court justices don their black robes, I shudder, because they frequently become the collective equivalent of Count Dracula, sucking the life’s blood out of traditional American culture. They are an elite group, who seem to specialize in the imposition of their views upon the rest of us.  How or why that is moral continues to baffle me.

If and when the Court finally kicks the door wide open to homosexual marriage, as some observers hope it will do in this case, the American people will, I predict, be sitting back twenty years hence wondering whatever became of the traditional American way of life.  I trust that, at the opportune moment, some dour soul will then have the courage to exclaim, “You watched it unravel, and you did nothing about it.  You were either imbeciles, cowards, or both. Now, by Jimeny, live with it!”

December 9, 2012