Eagle Forum Legislative Alerts

Wednesday, August 14, 2013

Supreme Court Marriage Decision

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. ... 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 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 Justice 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 Prop 8. California passed Prop 8 in a ballot initiative procedure designed to enable the people to correct public officials' actions that are not acceptable to the people.

The Supreme Court also declared the Defense of Marriage Act unconstitutional, thereby substituting a judicial edict for the will of our elected representatives. DOMA was passed by Congress in 1996 by large bipartisan majorities.

Justice Scalia was scathing in describing the failure of the Court to identify any basis in the Constitution for saying that DOMA is unconstitutional. Justice Kennedy instead made the nasty argument that the principal basis for Congress enacting DOMA was its supporters' "desire to harm a politically unpopular group." It's easy to see dozens of lawsuits coming down the pike to address the many questions the Supreme Court did not answer.

Listen to the radio commentary here:



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