28 June 2015 AD
11 Tammuz 5775
As reported in the New York Times, “In a long-sought victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote on Friday
that the Constitution guarantees a right to same-sex marriage.” Reference: http://nyti.ms/1dl6owf
Dr. Ben Carson laments, “While I strongly disagree with the Supreme Court’s decision, their ruling is now the law of the land.” Reference: http://bit.ly/1GxVoDX
The suggestion a Supreme Court ruling is automatically the “supreme law of the land” sent me back to a study of our Constitution for another look. Somehow the idea SCOTUS became a lawmaking body got past me. How is it possible I overlooked such a stupendous thing?
First I looked in one familiar place, the Constitution, Article VI, paragraph two, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article I, Section 1 remained as I remembered.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Here I came to a dead end alley. Lawmaking power for the Supreme Court eluded me, particularly constitutional authority to confer new rights. The search continued.
Desperately, I fought my way through all the well-organized clutter in my office for something that would assure me of this hitherto unknown authority apparently vested in the Supreme Court. At this point of my search, the Constitution’s text had been no help whatsoever. I found no satisfactory explanation in Article III or any of the numerous Amendments.
Suddenly, a wrinkled copy of the Declaration of Independence came to light! Ah! Surely my search was over!
Carefully, my reading of the Declaration of Independence brought my eyes to the second paragraph where these words stood out:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men
Three inalienable rights: Life, Liberty and the pursuit of Happiness. Imprints of the inalienable right to life are evident in all ten first amendments. Obvious to me, so are the imprints of the inalienable right to liberty. But, what the dickens does “pursuit of happiness” mean? Is this the inalienable right upon which the Supreme Court based its majority opinion? I just had to have an answer.
Thomas Jefferson authored the Declaration of Independence and he preferred it to say “pursuit of happiness” over George Mason’s preferred term of “property”. Here we go again! What in the world does “pursuit of happiness” mean to us today?
Oh, yeah! A fact of history suddenly came to mind! George Mason authored the Virginia Declaration of Rights before Jefferson authored the U.S. Declaration of Independence. Shazzam! It seems I was getting close to the end of my search. Section 1 of the Virginia Declaration of Rights popped! It says:
That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Reference: http://1.usa.gov/1mRXIiM
Mason and Jefferson agreed: the “means of acquiring and possessing property” and “the pursuit of happiness” are one in the same, a truly republican principle.
Exasperated, I read the full text of OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. One particular line of the ruling perplexes me. Justices in the majority state: “The marriage laws at issue thus harm and humiliate the children of same-sex couples.”
Logic of the ruling wholly escape me, leaving with this nagging question, “How does a same-sex couple produce children?”