Saturday, June 29, 2013

Supremes' New Morality Means Justice for Polygamy

Honest liberals agree that the Supreme Court ruling on "gay marriage" must eventually lead to further court rulings favoring plural marriage (polyamory) at the least.  The dissenting court opinion by Justice Antonin Scalia, whose much-derided "slippery slope" argument in the Supreme Court Texas sodomy ruling of 2003 predicted this week's ruling, gives insight to the future -- not just the demise of family, but demise of democracy and thus religious liberty.
“I am questioning the propriety, the sanity of having a value-laden decision ... made for the entire society by unelected judges.”
— Justice Antonin Scalia, U.S. Supreme Court
For background, read Liberals Say Legalize Polygamy NOW and also read 'Gay Marriage' Enables Polygamy Court Challenge as well as Mainstream Media Promote Polyamory

UPDATE 3/24/15: 'Husband' Impregnates Both 'Married' Lesbian Wives (Polyamory)

UPDATE 12/24/13: Activist Judges Say Scalia Right on 'Gay Marriage'

UPDATE 12/15/13: Polygamy OKd by Federal Judge in Utah (proving Scalia right)

UPDATE 7/30/14: 4th Circuit Judge Says Polygamy Will Follow Ruling for 'Gay Marriage'

In addition, read San Francisco's 9th Circuit Court short-circuits legal process after Supreme Court's ruling

UPDATE 7/31/13: Obama's 'Marriage' Lawlessness Spreads Across America

-- From "Polygamists find promise in Supreme Court decisions" by Molly Vorwerck, USA TODAY 6/28/13

In his majority opinion for U.S. v. Windsor, Justice Kennedy argued that the Defense of Marriage Act [DOMA], which defines marriage as strictly between one man and one woman, was unconstitutional because it pegs homosexuals as second class citizens. . . .

Anne Wilde, a Mormon fundamentalist and founder of the polygamist rights organization, Principle Rights Coalition, is hopeful that these decisions represent movement towards the decriminalization of polygamy.

Despite their contrasting opinions on other issues, advocates both for and against polygamy view these two [Supreme Court] rulings as instrumental in opening the floodgates for plural marriages.

. . . Mark Goldfeder, a law professor at Emory University, thinks that the two rulings had significant impact on the future of polygamy in the United States. Goldfeder, who specializes in the intersection of law and religion, says that the courts will need to find other justifications to keep anti-polygamy statutes in place.

"It's one hundred percent likely that these polygamist cases will come, but they will no longer turn on whether a relationship is immoral," Goldfeder says. "The court will look at whether these relationships cause third party harm."

To read the entire article above, CLICK HERE.

From "Utah polygamists celebrate, but will rulings help them?" by Jim Dalrymple II, The Salt Lake Tribune 6/27/13

Just hours after the court ruled that DOMA was unconstitutional, Joe Darger said he and his family were pleased. Darger, who with his three wives detailed their life in the book "Love Times Three: Our True Story of a Polygamous Marriage," said the ruling should help remedy polygamists’ treatment as "second-class citizens."

Darger added that he believes the decision also will influence the high-profile Brown case, which is pending in Utah before federal Judge Clark Waddoups. In that case, the polygamous Brown family — which is well known from the TV show "Sister Wives" — is suing to strike down the statute that makes bigamy a third-degree felony.

Jonathan Turley, the Washington, D.C.-based lawyer representing the Browns . . . pointed out Justice Anthony Kennedy emphasized the "limited right of the federal government in treating couples differently once they have been recognized as married by a state."

Perhaps the most significant development in regards to polygamy, Turley explained, was the court’s shift away from morality as a justification of law.

To read the entire article above, CLICK HERE.

From "Justice Scalia criticizes 'moralist' judges" by Clarke Morrison, Asheville (N.C.) Citizen-Times 6/21/13

"In the United States and indeed throughout the world, belief in the expert has been replaced by the judge moralist," said Scalia, who is the longest-serving member now on the high court. "We have become addicted to abstract moralizing."

. . . Scalia said a change in judicial philosophy occurred in the second half of the 20th century.

"And I am sorry to say that my court was responsible for it," he said. "It was my court that invented the notion of a 'living' Constitution. Beginning with the cruel and unusual punishment clause of our Eighth Amendment, we developed the doctrine that the meaning of the Constitution could change over time."

"About nine terms ago, we held laws against private consensual sodomy, laws that existed in perfect conformity with the Constitution for over 200 years, to be impermissible."

To read the entire article above, CLICK HERE.

Excerpts from Supreme Court Justice Antonin Scalia's 26-page dissenting opinion in the federal Defense of Marriage Act ruling of 6/26/13

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

[The majority opinion] is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. . . .

Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. . . .

The majority opinion need not get into the strict-vs.rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” that it violates “basic due process” principles, and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” . . . a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’”

Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages. It is this proposition with which I will therefore engage.

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. . . . I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn . . .), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. . . . Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? . . . DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.

Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation.

The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children.

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” —with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

. . . In my opinion . . . the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. . . .

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. . . .

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

To read the entire Supreme Court justice's writing above, CLICK HERE.

Also read Four People Joined as Spouses in California

For background of foreign trends coming to America, read
'Civil Union' Joins a Man & Two Women in Brazil and also read Polygamy a Civil Right: Canadian Court Case

As for religious liberty, read Supreme Court Rules Bible as 'Hate Speech' in Canada

In addition read Justice Scalia Says No Right to Same-sex 'Marriage' in Constitution

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