The following comes from a June 28 post on TheCatholicThing.com by Amherst jurisprudence professor Hadley Arkes.
The Week of Waiting: I had spent the first three mornings this week at the Supreme Court, bracing myself for what the Court would deliver on the issue of marriage. And by this time, people know that the decisions Wednesday marked a turn in the culture war.
Mark Twain said of Wagner’s music that, “it isn’t as bad as it sounds.” But these decisions were worse than they sounded. Some of our friends have sought gamely to pretend that the political contest will go on, contesting marriage state-by-state. And indeed it must. But we will have to summon our genius to find different paths.
The Court did not exactly produce a Roe v. Wade for marriage. It did not, in one stroke, sweep away all laws that refused to permit same-sex marriage. But the judges put in place the premises that are sufficiently decisive, and all it requires now are the litigants sure to come forward to complete the work.
They will challenge the laws that make no provision for homosexual marriages and the constitutions that forbid them. They will need only to cite the charged language of Justice Anthony Kennedy in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act (DOMA) of 1996. And that will supply a sufficient ground for sweeping away any lingering barriers to same-sex marriage.
In Section 3 of DOMA, the Congress stipulated that “marriage” would refer only to “a legal union between one man and one woman as husband and wife.” But to Justice Kennedy this affirmation of the meaning of marriage bristled with hatred and condemnation. In affirming marriage as the relation of a man and woman, Congress showed a disposition to “disparage” and “demean” gays and lesbians, to deny their “equal dignity” and affect them with a “stigma.”
As Justice Scalia pointed out, Kennedy was essentially charging with bigotry the people who had drafted this bill, but also the 85 Senators and 347 congressmen who voted for it, along with the president (Clinton) who had signed it. Hate-mongers all.
As it turned out, I was one of the architects of DOMA, and I had led the testimony for the bill in the Judiciary Committee of the House in May 1996. Justice Kennedy’s scathing remarks on the mind that brought forth DOMA seemed to stop just short of attaching my name.
But it’s worth recalling what brought some of us then to press for DOMA. The Supreme Court of Hawaii had installed same-sex marriage in that state. The question was whether couples could marry in Hawaii, and then, through the Full Faith & Credit Clause of the Constitution, bring their marriages back home to other states. In this way, one state could in effect “nationalize” same-sex marriage.
A state could refuse to honor marriages coming in from other states if it bore a moral objection, registered in its laws, to those forms of marriage (say, of persons below a certain age). But coming soon was the decision of the Court in Romer v. Evans, which threatened to knock out that prop of authority for the states. Sure enough it came, with the key lines from Justice Kennedy.
He famously held there that the moral aversion to the homosexual life “seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Centuries of Jewish and Catholic teaching could be reduced then to an “irrational” passion, an “animus.” No law that cast an adverse judgment, then, on the homosexual relation could find a reasoned ground of justification. And therefore a state could not incorporate any longer in its laws an adverse judgment on the homosexual life.
If that were the case, a state could not refuse to honor a same-sex marriage coming in from another state. That is what brought the need for DOMA. The Congress would give guidance to the courts and support the authority of the states in refusing to credit those marriages.
The Court on Wednesday affected not to touch this part of DOMA. But Justice Kennedy’s premise surely will, for it is the premise that has worked its way through all of the litigation since then. In Lawrence v. Texas (2003), Justice Kennedy held that the state could not justify laws on sodomy because there was no rational ground on which to condemn the homosexual relations that people pursued in their private lives.
He insisted at the time that this judgment entailed no “formal recognition” of any other relation – namely, “marriage.” To which Justice Scalia famously said, “Do not believe it.”
Only five months later, the Supreme Judicial Council of Massachusetts invoked Kennedy’s words in the Lawrence case in striking down the laws on marriage in the Commonwealth and installing same-sex marriage. And Kennedy invoked Lawrence again in striking down DOMA on Wednesday. As Justice Scalia remarked, we are simply waiting for the “second shoe to drop.”
The activists will come forward to test the laws in the various states, including the laws that offer no recognition of same-sex marriage. And all that a judge needs to do now is invoke Kennedy’s overheated language in U.S. v Windsor. To use an old line, discussing marriage now without Justice Kennedy is. . .like playing Hamlet without the first grave-digger.
And this is the work of a Catholic jurist. On all of this, more later.
Pantz On Fire
In his Dissent for the Ages to the Attack on Marriage, Justice Scalia takes down the ‘Gaystapo’ thought police with a particular keenness of insight and disregard for empty pretentious preening prose – that graces his better writings as landmarks in American Jurisprudence – even in Dissent…
Scalia dissects their pompous pedantic buffoonery with such a deft hand that just leaves the Misandrists (those Hateful to Men & Boys, Masculinity and Normal Heterosexuality) supporting the majority with nothing to do but avoid his words and mau mau some more of their separatist / exterminationist rage against the hated Y-DNA BioManPigOppressor’
Academentia is indeed a pathetic farce, and legal education all the more so.
When I graduated McGeorge Law School (w/ Dist) I was threatened with extreme violence by a ‘martial artiste’ professor for Supporting in a Conn Law class Scalia’s top notch stick it to em Dissent in Kennedy’s prior act of homage to Dred Scott – “Romer v Evans”
I was also notified near the end of classes that I was nominated for the ostensibly ‘prestigious’ Anthony Kennedy ‘Inns of Court’ (Kennedy is on the Board at McGeorge)-
Sadly, before I could turn them down with an equally scathing observation on ‘mr kennedy’ and his Misandrist shortcomings – I was notified my nomination was almost immediately blackballed by the same Gaystapo Buffoons who Censored Scalia’s discussion of them and their bigotry from the legal text books used in class.
Talk about disappointment – Like any self respecting Marxist (groucho) I wouldn’t want to join an organization that would have someone like me as a member, but that doesn’t mean I wouldn’t have liked the opportunity to tell ole Phony Tony to wriggle his head around and insert it in his hindsight. Ahem.
Well put, McDermott.
There is no such thing as “once a Catholic always a Catholic”: Justice Kennedy is no Catholic, and likely never was by his own choice. But all Kennedy’s arguments defy the belief in God … None of his arguments can stand up to the Constitution … because its tradition professes God as discovered in the Experience of Christianity. There is no such thing as an empire eliminating belief in a god from its laws: When this government dismisses Christianity, there will be some other religion step up to the plate. Which one will it be? It won’t be Judism, it won’t be Buddhism, nor Confusianism, nor neo-paganism, nor satanism, nor … what’s left? Islam. Are any other religions vying to take over where Christianity is being dumped? Yes, Islam. Islam in its practical day to day practice is similar to Protestantism and liberal Catholicism as well as plain old paganism … not the doctrines so much but the way Muslims live. The first commandment of God to man was to marry, make babies and raise families. Only Islam is moving this forward in great numbers; not even the traditional Catholics are competitive here. Much easier to memorize “allahu akbar” than to read the CCC … I’m waiting for the bookies in Vegas to begin announcing the odds.
Justice Kennedy’s uniformed and uneducated ‘opinion’ on homosexuality is just that, his opinion. My opinion is that he is an arrogant dork. How is it that one dork can be permitted to overturn the will of the millions of voters in California? In the DOMA case Kennedy said that it is up to the states to decide… then he refuses to hear the case where the state has decided (twice) and the will of the people of the state was overturned by one homosexual judge?
Actually, with regard to Prop 8, Justice Kennedy wrote the dissent, in which he argued strongly that the defenders of Prop 8 did have standing and that their case should have been heard.
This all gets back to those Diocese Bishops who REFUSE to enforce Canon 915 and Canon 1399 in disobedience to the Church.
(Disobedience to “Apostolic Constitution SACRAE DISCIPLINAE LEGES” which includes: “Finally, the canonical laws by their very nature must be observed.”)
Canon Laws are intended to teach, to correct, to discipline.
Excommunication can be reversed when/if the grave sinner repents, has a firm purpose of sinning no more, and does his best to repair the damage he has done through his sin and his mortal sin of scandal.
(Code of Canon Law can be found on the Vatican web site.)
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CCC: ” 2286 Scandal can be provoked by laws or institutions, by fashion or opinion.
Therefore, they are guilty of scandal who establish laws or social structures leading to the decline of morals and the corruption of religious practice, or to social conditions that, intentionally or not, make Christian conduct and obedience to the Commandments difficult and practically impossible.
This is also true of business leaders who make rules encouraging fraud, teachers who provoke their children to anger,
or manipulators of public opinion who turn it away from moral values. ”
(Also see 2284, 2285, & 2336.)
1 Cor 5:9-13.
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Where are our Bishops ? Sleeping ?
Canon: “915 Those who have been excommunicated or interdicted after the imposition or declaration of the penalty
and others obstinately persevering in manifest grave sin are not to be admitted to holy communion. ”
Canon: ” 1399 In addition to the cases established here or in other laws, the external violation of a divine or canonical law can be punished by a just penalty only when the special gravity of the violation demands punishment and there is an urgent need to prevent or repair scandals. “
Why, then, are there still some bishops being allowed to receive Holy Communion?
… with each other, according to the “gay lobby” mentioned by the Pope.
I no longer respect the moral authority of the US Supreme Court. – They have forced upon our society – abortion, pornography, sodomy (same sex-marriage).
On the 4th of July it would be great if all Americans read the “Declaration of Independence” and the “US Constitution”.
(State Constitutions are also important.)
Diocese Bishops – start right now teaching Catholics that their duty to VOTE means NOT voting for politicians who support grave immoral activities. This is at all levels of government, Federal , State & Local.
Evil politicians appoint evil judges.
(And this has nothing to do with gun control for law abiding citizens, Obamacare, the death penalty for those convicted of premeditated 1st degree murder, or ILLEGAL aliens. Bishops get out of politics and do your own job.)
Every Sunday at Mass, as part of the general intercessions, I hear a rather pablum-like appeal for “our government leaders to act in interest of the common good” (or something to that effect). However, I NEVER hear an appeal to the Catholic laity to adhere to the non-negotiable tenets of their faith when voting for those very same government leaders. Odd, that.
Justice Kennedy is another product of CA – born and raised in Sacramento.
He had been a judge of the infamous – United States Court of Appeals for the Ninth Circuit.
While Bishops played their violins – Rome (CA) has been burning for years and turning out immoral politicians and judges.
When are they going to start doing their jobs and enforcing 915 and 1399 ?
Are there any holy Bishops in all of CA ? Are there any who will do God’s will rather than their own?
Are there any who encourage literate persons to meditate on Holy Scripture and study the CCC at home, as urged by Pope Francis so they will accurately know their Faith?
The Supreme Court has no regard for the wishes of the people, is evil and leading the country to destruction. I will no longer vote. It serves no purpose. We have entered a dictatorship in the US.
I think the subtitle on the photo above this article (“Justice Kennedy bust in Sacramento”) should be, “Justice Kennedy is a bust.”
These are the types of arguments that Should have been made earlier, and should be discussed much more:
“Same-Sex Parenting: Child Abuse? by Robert Oscar Lopez
Single-parenting and divorce have always been understood as a breakdown of the married mom and dad ideal, but the demand to view same-sex parenting as “normal” imposes a silence on children about the wound caused by the loss of one parent or the other.