Wednesday, February 23, 2011

The Rot Spreads Outward

"[N]ow, “under heightened scrutiny” since the 2nd circuit court asked for the administration to defend its position given lack of precedent, Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”
That legislative record, Holder wrote, “contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.” - Attorney General Eric Holder

This is entirely logical given the premises of what Justice Scalia calls "the homosexual agenda": the idea that the Constitution as written already guarantees the legitimacy and normalization of homosexuality, and the problem is just making everybody obey that without the hassle of winning elections.

Of course, it would be news to the Radical Republicans that they legalized gay marriage in 1868 when they ratified the 14th Amendment and its Equal Protection Clause. It would be news to most Americans since then, too: on three separate occasions in the 20th century, 3/4ths of the states agreed the Equal Protection Clause was so narrow, it did not guarantee the vote to women, residents of the District of Columbia, and 18-year-olds. That's fact, because each time that percentage of the states ratified a specific, separate amendment to the Constitution to provide that guarantee. Somewhere since the Court has ignored the Law, and decided the Equal Protection Clause forbids any distinction, unless, the motives are sufficiently, uh, pure.

Pure, meaning secular and not religious.

"It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law." LAWRENCE V. TEXAS (02-102)

Can we dispense with the malarkey? This was not enacted in 1868, or 1919, or 1965, or 1973. It is a most recent misinterpretation of the 14th Amendment, by unelected judges, and does not have the moral force of the 14th Amendment behind it. 3/4ths of the states did NOT legitimate homosexual behavior, now or ever.

To demonstrate the insanity of our Law as it now stands: It would be impossible for Eric Holder to prosecute the members of Congress who voted for the Defense of Marriage Act, on the theory that they were bribed by the Vatican to vote for the legislation. It would be impossible because the Supreme Court has held that a criminal court and jury cannot investigate the motives behind an individual Congressman's vote. Congress, as a group of individuals, enjoys immunity from that sort of judicial probe.

But if the Supreme Court thinks each Congressman voted for the Defense of Marriage Act because it agreed with the Vatican that homosexuality was a disordered act -- the Law is void.

As Justice Scalia noted in his dissent to Roemer v Evans:

"The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers...

"It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 11-12.

As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group whether drug addicts, or smokers, or gun owners, or motorcyclists - from changing the policy thus established in "each of [the] parts" of the State."

But what separates homosexual conduct from drug abuse, smoking, or polygamy? What legitimate state interests allow regulation of those behaviors - despite the open-ended misapplication of the Equal Protection Clause?

Authority likes it. That's all. Arbitrary decisions by those who occupy the institutions of government. Some guys are on the Supreme Court, and they want the Law writ their way, and all contrary law to wither on the vine, POOF 200 years of law is void. Some guy is Attorney General under a liberal President, and he'd rather the DOMA Act went away, POOF it will not be defended.

It is this endorsement of arbitrary power by right of occupancy, that is the dangerous rot that is spreading. Homosexuality is not going to bring down the Republic. Empowering the Court and the President to smother laws passed by state legislatures and Congress, in the name of Freedom, is unsustainable tyranny.