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The US Constitution and Fundamental Rights

On 26 June 2015 the US Supreme Court declared marriage a nation-wide right for same-sex couples. Justice Scalia was on the dissenting side of the 5-4 decision and spoke of "the court's threat to American democracy." He went on:

To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

He added:

Today's decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

David Boies, a superstar attorney doesn't agree with Scalia. He responded to Scalia by describing the Founding Fathers as having created a constitution that guarded principles above and beyond democracy – as a part of our democracy. The Supreme Court does make mistakes occasionally, but so do presidents and Congress. The Court is one of three branches of government protecting fundamental rights, and it can and does overrule laws created by Congress. Boies holds that marriage is a "fundamental right" that cannot be infringed upon for any citizens. That now means the right to marry someone of the same sex. It means homosexual couples have the same rights to civil benefits accorded heterosexual couples. It is about homosexuals having the right to be treated equally.

The US system of government stands against any 51 percent of the population taking away the fundamental rights of the other 49 percent. But contrary to their rush to assume that public opinion is on their side and that democracy has been violated, according to a new CNN/ORC poll, 59 percent say they back the ruling which made same-sex marriages legal in all 50 states.

Did Scalia let his disgust concerning homosexuality influence his understanding of our system of governance and his interpretation of law? Perhaps emotion made Scalia other than all reasoning regarding Constitutional law. Or he let Church ideology influence his decision. All four of the dissenting judges, including Scalia, were Roman Catholic.

Catholics are citizens with a right to their opinions, and a right to express those opinions if they are jurors. I would not want to burden Justice Scalia with an obligation to be unbiased.

History has was made by the 5-4 decision on 26 June 2015. Historically, conservatives have been critical of democracy and what they have called "mob rule." Now they have picked up on "democracy" as an argument against the ruling.

And as always we have people who blur the issue. The judges deciding with the majority were trying for balance. Balance is always the aim. A woman from Indiana has expressed her disapproval of same-sex marriage by having petitioned her local government to allow her to marry her dog Brutus – an out-of-balance comparison. Maybe she would like to go a little further and petition to marry a doorknob.

A more challenging issue regarding balance is polygamy. Arguments regarding this are available online.

Copyright © 2016 by Frank E. Smitha. All rights reserved.