I am continuing to analyze the dissents in the same sex marriage case.
One more unifying theme in the four dissents - by judges Roberts, Scalia, Alito and Thomas - is that in defining marriage the majority deviated from the definition of marriage "deeply rooted in history and tradition" of the United States and of the entire world.
Yet, judges demonstrated selective blindness as to what kind of "history and tradition" pertaining to marriage they wanted to consider and what kind they wanted to hide and not touch with a 10-foot pole.
First of all, the issue of constitutionality of the same sex marriage (as well as issues of constitutionality of any other concept or law) have nothing to do with "history and tradition". Nowhere in the U.S. Constitution does it say that the "due process of law" is restricted to what is "deeply rooted in history and tradition".
The history and tradition, if you look at the Bible is that of incest and polygamy, by the way.
Let's think logically and mathematically - if Adam and Eve were the only human couple on earth, then their progeny had to mate with one another (full brothers and sisters, clear incest) to procreate the human race. Nothing to be proud of, and that kind of "history and tradition" is a felony in most states and most countries of the world at this time.
Moreover, this country is a melting pot of different ethnic groups from around the world. Judges, nevertheless, arrogantly presume as "history and tradition" of marriage only heterosexual monogamous marriage as a model. Yet, humans are historically polygamous, hystorically matriarchal, therefore, the history of marriage must include plural marriage on both sides - polyandric (many husbands) and
In fact, Bible abounds of examples of polygamy (a crime in majority, if not all of the states of the U.S.). And that is also "the history and tradition" of marriage.
Moreover, while the dissenting judges expounded on the alleged goal of the marriage that cannot be fulfilled through a same sex marriage - procreation - judges at the same time recognized that 40% of children in the U.S. are currently born to "unwed mothers" (!). Thus judges, first, denigrated the mothers, and second, assumed that the "unwed mothers" are somehow giving birth alone, and not that the children are born to a mother and father, or to a homosexual couple who did not yet or could not legally, marry, only showing the discriminatory and demeaning look of the judges at women and family.
If 40% of children in the U.S. are born outside of wedlock, and at the time when in vitro fertilization, egg adoption, sperm adoption, sperm adoption, child adoption and birth of children through surrogate carriers/birth mothers are widely available to same sex couples, while there is no restriction on age and reproductive health for heterosexual couples, procreation seems like a weak argument to make a case against legitimizing the same sex marriage.
It is peculiar that one of the dissenters pointed out at a case citing that marriage is a union between a man and a woman that had a goal of procreation, a case decided in January of 1978, while on July 25 of that same 1978 the first in vitro baby was born, paving the path to all sorts of combinations of procreative options for single individuals and same sex couples.
Now, let's go back into common law England where the dissenters delved, but left entire portions of "history and tradition" pertaining to marriage untouched.
Marriage from the time of Magna Carta (the 13th century) to the 20th century was a contract between parents of the couple to be married, the couple to be married had no say in the matter, and most often the marriage was about joining properties and forming political unions, and producing heirs to certain properties and to titles of nobility.
By the way, even the allegedly "noble" goal of procreation and "survival of human race" through such procreation (for which marriage was never necessary at any time, since procreation does not need official permission and happens naturally, and it is needed even less with the onset of IVF, surrogacy and adoption) could not be a realistic goal of the marriage when brides and grooms were betrothed/engaged and often married as infants far below the age of puberty.
A sociological study on the history of the age of consent reports that "[m]ore than 800 years after the first recorded age of consent laws, the one constant is the lack of consistency. Laws around the world define the socially appropriate age of consent anywhere from 13 to 18". Having sex with a 13-year-old is a felony of statutory rape in most states, and it does not matter how the girl looked or behaved, the law simply presumes that a child that young cannot form a consent, cannot fully realize the consequences of her act.
Other sources report the age of consent as low as 7, 7 was reportedly the age of consent in the State of Delaware, following the "tradition" of the English common law, and a bride as young as 9 in the state of Virginia, here in the U.S.
In the U.S. the age of consent was, reportedly, in most states, 10 (!) until the 1960s.
Yet, in the "history and tradition" of marriage, it was that the male leader of the family - the father, brother or other male guardian - decided the fate of the female and married her off, without seeking her consent and without being interested in her consent, at whatever age he wanted to do that, mostly for property reasons and reasons of lust, in other words, marriage was "historically" selling of, mostly, an underage girl without her consent - which constitutes a number of crimes nowadays.
Somehow, the dissenters did not want to consider THAT part of the "history and tradition" of the "sacred" "institution of marriage".
So, when judges of the U.S. Supreme Court get on their high horses to expound on "history and tradition" of marriage, it is important to look what sides of that same "history and tradition" they are omitting from the discussion. It is clearly a rhethorical question to ask why they do that - because it does not help their argument. But such manipulation of the truth in argument does not give these four dissenters much credit.
I will try to show some personal background on judges in how and why they possibly ruled the way they did in the next blog.
Stay tuned.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
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