Of course, it’s old news by now; the US Supreme Court’s 5 – 4 decision in support of gay marriage. But, that slim majority should have been 9 – 0 and it needs to be said and explained why the vote never should have been that close.

The five assenting Justices relied on the “equal protection” clause embedded within the 14th Amendment of the US Constitution, the key language of which follows:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”.

The language is unequivocally clear on two counts; i.e. it deprives states of the right to make and enforce discriminatory laws (1), which in turn, makes any such laws that are already on the books, discriminatory, illegal and therefore, must be nullified.

How the four dissenting Jurists could not see what is so obvious to many of us is a question worth asking. Basically, they fell back on the argument that there is, within the Constitution no provision giving gays the right to marry. This rationale is true in the strictest sense; i.e. there is no explicit language to that effect. But again, the intention of the “equal protection” clause cannot, justifiably, be construed any other way. (2)

None of us can get inside the heads of the four dissenters to ferret out the motive(s) for their votes. But, it is worth noting that all are staunch Roman Catholics and as such, have a strong, religious-based objection to gay marriage. Now, we can certainly respect their right to embrace that view. But all judges are seated to uphold the law, not use their position to impose their morality on the rest of us with their decisions. To do otherwise is a violation of their oath of office and a de facto assault on the separation of church and state, even if unintended. The four dissenters – Roberts, Scalia, Alito and Thomas – tarnished their reputations as impartial arbiters of the law with their objection.

Finally, in the Preamble to our Constitution, the Founding Fathers saw our nascent nation as a work in progress. They believed our future would involve us moving towards “a more perfect union”. The High Court’s 5 – 4 decision is not a step, but a long stride in that very direction. We are indeed a “more perfect union” when all our citizens are given the “equal protection” they constitutionally deserve.

A happy Fourth to one and all, and God bless America!!!

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1. Republican presidential candidates have tried to fall back on the argument that each state should retain the right to make a pro/con gay marriage decision free of interference by the courts or federal government. Such a position reflects a stunning ignorance of our history; i.e. we fought the Civil War over just that issue. As we all know, the “states’ rights” folks lost.

2. The Constitution’s First Amendment insures that the government can neither sponsor nor impose a religion on US citizens. Yet, the explicit phrase “…separation of church and state….” appears nowhere in the document. This reality can be applied to the minority opinion of the four dissenting Justices in the recent gay marriage decision.

 

 

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