The idea of unelected judges defining norms and basic values has never been an appealing one, but it's a role modern judges seem generally to welcome. Witness the Supreme Court's seeming step-back on same-sex marriage: its refusal to wade into the issue by hearing seven appeals on same-sex marriage bans in five states.
The justices define America -- for now -- as divided over the question. But they appear to see supporters as likely to prevail in the end as lower court after lower court comes down on the side of those arguing that the bans represent unconstitutional discrimination. The court sees where this thing is going; a probable majority of members wants to let nature, as it were, take its course. Far be it from our highest federal tribunal, as presently constituted, to affirm the up-to-now unbroken, uncontradicted testimony of civilization concerning matrimonial ends that can be served only by the union of man and woman.
Earlier courts would have said, sure, right, what's all the fuss? Earlier generations would have nodded in vigorous agreement. Of course, same-sex marriage is a snare and a delusion -- an impossibility from the word go! Whoever said otherwise?
Increasingly the "whoevers" include intellectuals, clerics, activists -- yes, and judges -- persuaded by claims that whatever we may have thought in the past now is off: so highly persuaded, so cocksure, that brushing aside the layered wisdom of centuries becomes second nature.
When Indiana's and Wisconsin's gay-marriage bans came before the U. S. Court of Appeals for the Seventh Circuit, a widely celebrated Reagan appointee to the court -- Richard A. Posner -- likened those bans to now-dead "traditions" against interracial marriage. The learned judge -- a libertarian -- was blowing a noxious mixture of smoke and hokum. Laws prohibiting "miscegenation," as racially mixed marriage was called, were a "tradition" only in the segregated South, whereas marriage, in all religious traditions, pointed to the union of physical opposites for purposes of replenishing the human race and establishing small human communities fundamental to the health and unity of the larger community.
Indiana's solicitor general replied to Judge Posner: "Men and women make babies; same-sex couples do not. We have to have a mechanism to regulate that, and marriage is that mechanism." The argument sailed over Posner's head, and the heads of his colleagues, who denied collectively in their 40-page opinion that they had heard any "reasonable" arguments levied against arguments for completely making over an institution older than the federal court system, or for that matter Magna Carta. A legal argument for discrimination was all that defenders of the ban had to offer. Fie! Fie!
The Supreme Court could have taken this gaseous and embarrassing opinion, shredded it and politely advised the signatories to take a week off -- their imaginations having so plainly run away with them.
The high court's refusal instead to take the case on appeal, in combination with the other outstanding appeals, shows us the lay of the judicial land. For a time, states that uphold the civilizational wisdom embodied in man-woman marriage probably may continue to do so. But for a time only. The "discrimination" argument is the argument the federal courts appear disposed to ram down society's large and wide-open throat. No citations from dead philosophers or theologians, please -- certainly none from the Bible. Attention -- we're moving on! The federal judiciary will show us the way, as it did so thoughtfully with Roe vs. Wade and abortion, until later courts stumbled over the detail work, unable to specify how much or how little space consciences might henceforth occupy when it came to unborn life.
The federal courts on same-sex marriage have performed less sweepingly than the Roe court, in 1973, which dismissed all previous cultural information concerning the responsibilities of parent to child. That's for now. It's hard to see jurists of the Posner stamp shirking the joys of explaining to the world what God really meant when He created men and women. Who knows -- the Creator Himself might welcome clarification from jurists who, if you listen to them, apparently know everything.
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