Mark Davis
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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.

Amid all the finger-wagging warning conservatives that they are on “the wrong side of history,” we should be quick to remind that advocating liberty never offends history.

If a state wishes to engage in the radical redefinition of the central relationship in human history, it may do so. But proponents who win in one state do not have the right to dictate what happens elsewhere.

I am hopeful that the Supreme Court will leave this to the states, not because most justices share my state’s rights passion, but because they ultimately do not want to wear a Roe v. Wade-style stain, cementing the reputation of another court relying not on the law but on the nebulous concept of The Way They Think Things Ought To Be.

Even liberals, who tend to favor “marriage equality,” have a responsibility to respect the will of those who disagree.

Something does not become a constitutional right simply when people grow passionate about it. I happen to think every restaurant should be able to allow smoking if it wishes, and every New York street vendor ought to be able to sell a barrel-sized Coke.

But cities may indeed constrain those matters with standards that are the will of the voters. (Remember that the Bloomberg soda ban did not fail constitutionally, it was nuked for incoherency).

There is no doubt that gay marriage proponents have successfully identified their cause as the moral cousin of the battles to end slavery and grant women’s suffrage.

But civil rights and women’s rights address areas where gender and race differences are irrelevant or none of the public’s business. The sex of a voter or the race of a bus passenger are of no relative consequence, so equality under law is called for.

Men and women have equal status in many ways, but they are not the same type of human being. We have males and females because that dichotomy is central to the furtherance of the species. Throughout human history, men and women have interacted in ways that speak to the very different properties, characteristics and attributes they bring to the human table. Those differences are what make men and women unique, distinct and magnificent in their own ways.

The “marriage equality” movement that says it exists only to allow loving couples to do what they wish to do, brings the risk of eroding various gender differences, poisoning many other areas of law. If it is the same for me to marry a man as to marry a woman, how can we maintain any law that protects women uniquely, or restricts the draft to men, or keeps men out of ladies’ rooms? Some examples run to the potentially absurd, but I would suggest our nation’s founders find it mightily absurd that the nation they created is actually debating whether the nation should compel acceptance of a revision of one of life’s fundamental precepts.

While there are factions ready to condemn any Republican failing to sing the glories of same-sex marriage, I believe there remain plenty of voters willing to accept national candidates who say the states should decide this matter for themselves.

The Bible guides our morality. It is properly used to bolster an argument against “marriage equality” in any state considering it. There are societal and historical reasons alongside that make this a wholly different thing than opposition to interracial marriage, which was an incursion into people’s private business.

The Constitution guides our laws, which provide a legislative marketplace for those on both sides of the gay marriage issue.

Gays may marry any time anywhere and live as wedded couples for the rest of their lives in any state. The only issue is whether those unions will be viewed as the legal equal of heterosexual unions.

States wishing to take that giant step are free to legislate accordingly. Those unwilling may maintain unique recognition for opposite-sex couples. In both cases, the winners and losers have the responsibility to recognize that this is what liberty looks and feels like.

A judicial cram-down usurping voter wishes on this matter looks and feels like something wholly different. I hope Justice Kennedy and at least four of his colleagues can achieve clarity on this, fighting off the temptation to rule according to what seems kind to one side or popular in the polls.

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