Mark Davis

I would like to think that Supreme Court justices are smarter than I am.

At one level, they surely are. Their years of devotion to the practice and analysis of law involves countless pages of book-learning I will never undertake. Their brains must fairly bulge with minutiae I cannot grasp.

But there is a difference between intelligence and wisdom. There are high school dropouts who have deep wells of astuteness about how to think, act and live in an enlightened way. And there are Ph.D.’s I would not let into my house.

In one stunning moment Tuesday from the Supreme Court bench, we saw a very smart man say something of such profound stupidity that it should shake our very faith in some of the people who wear our loftiest judicial robes.

Justice Anthony Kennedy, who apparently has the power to shape a nation depending on which side of the bed he gets up on each day, was quizzing Charles Cooper on his defense of California’s Proposition 8, which reflects the voters’ wish for unique legal recognition of opposite-sex marriage.

“There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

Actually, Mister Justice Kennedy, that supposition has no place whatsoever in a consideration of what the Constitution says and what it does not. For a randomly-chosen person on the street not to know this is understandable-- and the way things seem to be going lately, probable.

For a sitting Supreme Court Justice to invoke such a thing is shocking.

If we are going to start projecting the wishes of children onto our evaluations of various laws, divorce will become illegal immediately. And I would presume that there are over a million unborn babies who would prefer not to be ripped from the womb each year. I presume Justice Kennedy’s ears are not cocked as attentively in their direction.

It is up to grownups to interpret law based on what the Constitution requires. That is a complex enough task without wringing our hands over emotional side-shows.

There are places for arguing our likes and dislikes of gay marriage-- the states, where in the California example, a whopping voter turnout nearing 80 percent yielded a 52-48 victory for those seeking to legally recognize only the marriages between men and women. In that state, for the time being, that settles it.

As time passes, other states may join the ranks of those granting legal equivalency to homosexual unions. They are constitutionally permitted to do so. And that’s where all of these battles should be.