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.
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