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Constitution Protects Gay Marriage? Supreme Court Thinks So

June 27, 2015

The question of whether or not to allow gay marriage in the United States really comes down to whether or not the Supreme Court justices believed it was a right protected by the Constitution. It’s a valid question, because Constitutional rights vary depending on the way the wind blows that day, warm and fragrant or downright menacing. The Constitution is the true double-edged sword, with half the justices trying to be mind readers of the 1787 variety and the others trying to determine how an old piece of writing applies to today’s society. Lest you think the mind reading element is insane, consider that the courts are influenced by all manners of campaign contributions, campaign contributions, financial sponsors, and have I mentioned campaign contributions? So, the “conservative” view holds with the idea that society shouldn’t shape our Constitution, because all else is chaos. The more “liberal” justices call “conservatives” the equivalent of an ostrich with its head buried in the sand and feel that we can’t ignore society’s changes. Oh, that there were a 3rd option whereby the Supreme Court actually recognized that it literally plays with peoples’ lives as though they are models in the sand.

The majority opinion ruled that gay marriage is a fundamental right, and that it is granted by the Constitution:

But Justice Kennedy rejected that idea. “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process,” he wrote. “The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry.”

Later in the opinion, Justice Kennedy answered the question. “The Constitution,” he wrote, “grants them that right.”

There is not much support for why this is a fundamental right in the media portrayals, but the opposition is less compelling, ludicrous even.

“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”

You know you have a losing argument when Chief Justice Roberts has to rely on Kalahari Bushmen to try to make his point. Kalahari Bushmen who make poison arrows from crushed insects to survive are now setting policy for the United States. I can not believe that was brought up in a court. Han Chinese? Those misogynists who bound little girls’ feet to kill the tissue and cripple them into male concepts of sexual attraction now set policy in the United States?  Please, let’s not get too insulting here, but then Roberts has no choice, it’s in his genetic code, misogyny, it appears, bigotry, I think. Aztecs? Middle Americans who also sacrificed human lives are now poster children for our laws? For real? Delusional much Roberts?

Kennedy made the most compelling arguments, and it was his decision on which the vote was proffered and passed.

Justice Kennedy was the author of all three of the Supreme Court’s previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

“The nature of injustice…is that we may not always see it…” And that is the crux of the issue. Then how could any forward-thinking justice move for anything but sentient decisions? Supporting justice then is a means of seeing injustice, and to do otherwise is to be blind to injustice. Excellent strategy there, Kennedy.

 Of course, if we were to live in Robert’s warped view, we would still be living according to laws of human sacrifice, torturing children with foot binding and using poison arrows. A Constitution that responds to society is much more appealing.

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