The Supreme Court decision on marriage, as Justice Antonin Scalia wrote in his dissent, "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."
Scalia said this role would have been unrecognizable to those who wrote our Constitution. They knew the dangers of "primary" power and that's why they divided power into three branches of government.
The New York Times headlined its report with the bald-faced lie that the court "Follows the Nation's Lead." Au contraire: The court ignored the nation's lead. The court rejected the majority vote of the people of 31 states, including our nation's bluest state, California, and ignored the fact that the traditional definition of marriage is enshrined, either by statute or state constitution, in 38 states.
Not only were the court's decisions wrong, but, as Scalia wrote, the Supreme Court had no power under the Constitution to invalidate those two democratically adopted laws, the Defense of Marriage Act (DOMA) and California's Proposition 8. California passed Proposition 8 in a ballot initiative procedure designed to enable the people to correct public officials' actions that are not acceptable to the people.
The California Attorney General refused to defend the law, so the Proposition 8 sponsors joined the case to defend their properly enacted initiative. After the California state supreme court upheld Proposition 8, the same-sex-marriage advocates ran to supremacist federal judges to overturn the voters' wishes.
They succeeded by getting the Supreme Court to reject the "standing" of the Proposition 8 sponsors to defend their victory. That ruling defeated the whole democratic process of a citizen initiative because it enables public officials to overrule the will of the voters (expressed by winning a ballot initiative) by simply refusing to defend the law in court. The 27 other states that use initiatives will now be worried about their validity.
The other marriage case decided by the Supreme Court declared DOMA unconstitutional, thereby substituting a judicial edict for the will of our elected representatives. DOMA was passed by Congress in 1996 by large bipartisan majorities and signed by President Bill Clinton.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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