Tuesday, June 16, 2015


In the debate over Marriage Equality the states and Scalia argue that it has been the province of the States to define marriage and it should remain so, since this has been the way it was since the beginning of our country.  False - in fact in many states it was not until the mid 1800's the licenses were required or family law codes were even developed.  The courts during so called divorce proceedings looked to contract law as a way to protect the wife and children from being abandoned with nothing.


"I. OUR law considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animae [for the health of their souls].1 And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law."

See Blackstone's Commentaries, Book 1 Chapter 15 - On Husbands and Wives"

There is no doubt the regulation of marriage belonged to the church not the state.  But this reality does not fit Scalia's desire so he ignores Blackstone.  Scalia knows there are many churches which will marry gays, so he cannot accept the historical role of the church in marriage.


Scalia spends a lot of time quoting and misapplying Blackstone to get to the idea that the concept of liberty interest is not as broad as some on the court would have you think.  But you watch in his Marriage Equality dissent he will ignore Blackstone's words that marriage is the province of the Church and instead find it has always been the province of the State.

In my view his opinion is the second most destructive Supreme Court opinion in the history of our country  - the first of course being Texas v. White, wherein our inherent right to throw off a government no longer meeting the ends of government was abolished.  Not that it matters, but this inherent right is the legal foundation for the Declaration of Independence.

Scalia's use of the concept of Ordered Liberty to justify his reasoning was just over the top.

Here is the danger in Scalia and those how follow him.  Scalia rejects the notion that liberty is absolute unless the government can justify restricting our liberty - such as laws against murder or theft for example.  This is the essence of substantive due process.  Procedural due process only deals with the procedure behind the application of the process, whereas substantive due process addresses the basis of the reasoning for the law and or process.  It is fundamental in the history of law, laws cannot be random and arbitrary - they must serve the end of "Ordered Liberty." If you agree with Scalia then you believe our liberty is not natural but comes from the governments instituted among men.  If you believe this then you had no liberty until government was instituted.  This is dangerous - it enslaves us to government - which is exactly what Texas v. White did, by taking away our inherent right to rebel.

People need to stop thinking about the little box, and instead the greater issue.  You can believe the south was not justified in its reasoning to leave the Union, while still believing we the people have an inherent right to rebel against a repressive government.

You can believe that Marriage Equality offends your concept of marriage without having to believe that liberty is so restrictive for liberty to exist there must be evidence of the government at some time allowing for the act.  Liberty is inherent subject to the concept of Ordered Liberty, and not something we get from government or each other. Do you really want your liberty defined by the government and neighbor without them having to justify the need for their acts within the realm of Ordered Liberty?  Think before you subscribe to these anti-liberty notions.

One commentator is claiming by Chief Justice Roberts agreeing with the majority in Kerry v. Din,  he showed his hand in how he will vote in the Marriage Equality case due by the end of the month.  This is false and typical of commentators who put their agenda ahead of reality and fact.

"Scalia took the opportunity in Din’s case to make the argument that there’s no such fundamental liberty. He concluded, after reviewing the case law, that there is no “free-floating and categorical liberty interest in marriage … sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.”

Click for commentary

The first thing you should not are the dots - when a commentator edits what is being said you can be sure he is twisting what is being said.   Even the edited statement clearly states that we are not dealing with the right to marry, but whether every governmental regulation which may touch upon marriage requires constitutional protection? 

Even Justice Bork whose confirmation to the Supreme Court was block in part to the phrase "one Justice from an Injustice," has written the penumbral rights are those which if denied would in effect deny a known constitutional right.  They are not constitutional rights, but rights which must be protected if the constitutional right is to be protected.  In his objection to the constitutional Right to Privacy, even Bork agreed that the Court had historically used his understanding of the penumbra. 

What makes the Din decision so dangerous is, it abolished the penumbral rights tied to the constitutional right of marriage.  I agree there is no constitutional right to use a condom, as held in Griswold .  But to criminalize the sale of condoms impairs the marriage relationship, and is therefore subject to constitutional protection via the penumbral rights incidental to the constitutional right of marriage.

But on the commentator's claim that Justice Roberts pinned himself in against Marriage Equality, is total BS.  All he did was agree that there is no constitutional right to have your spouse live with you.  The result may have been different had Din  argued that to protect her right to marriage the constitution protected against regulations which impair her marriage relationship. 

The issue in the case was a claim by a consular official that her husband was tied to the Taliban when they were in power and thereby tied to terrorism - so his visa was denied.  The heart of the argument was simple - did she as his wife have a constitutional right incident to her marriage to challenge the claim.  The Court sadly found a consular official can deny any visa without being subject to challenge in the court as the accuracy of the decision.  This is  Kafkaesque at its worse.

Those who look at the Din decision for its result versus the process, and celebrate the decision are the very people who will cry the loudest when the reasoning is used against them.  Do you honestly believe the government should be allowed to accuse you of wrongdoing without having the benefit of judicial review before your life is changed for ever?  How sad if you do.

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