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Division this close means widening social fractures

By Josh First

Legislating from the bench, a liberal majority on the US Supreme Court once again discards jurisprudence and picks up the hammer and saw of simple policy making.

Beginning their opinion with a personal attack on religious Americans and other traditionalists who thought that thousands of years of human history didn’t need to be tossed out a window, at least not by five people wearing ominous black robes, the Court said nothing about law or the basis of law in America. In fact, the majority opinion refers almost not at all to the Defense of Marriage Act which it overturned.

These are the same four or five Americans who do not believe that the Second Amendment to the Constitution means what it plainly says and always meant in practice among citizens since the nation’s founding. They are wildly out of touch with the law they are supposed to be upholding and protecting.

America is badly served by this sort of law-making. Why have a US Congress and an Executive branch if five unelected people can make something up themselves? And a lot of Americans aren’t impressed enough to start following this sort of top-down, Smarties-Know-Better-Than-You governance. Courts are supposed to be reluctant to toss out entire laws, because it demonstrates that the people, the citizenry, were just plain wrong. But in a Republic like America, government, and justices, operate only at the will of the governed.

That government that governs the least maintains the most credibility and fealty. Sweeping government decisions like today’s judicial legislation deeply alienate citizens from the government they believe is supposed to represent them. Remanding DOMA back to the states would have made the most sense, because marriage is a state issue.

But then again, Americans are locked in what is becoming a quiet civil war about what America is and how it is supposed to be, and the Court is becoming a friction point. These views are incompatible. One side wants adherence to the Constitution and founding principles easily obtained from the founding documents, while the other wants power through massive, intrusive, spying, monitoring, crushing, incarcerating, penalizing government. Apparently, some modern ideas are so good that they must be made mandatory…in other words, resistance to them is punishable, despite real, legitimate disagreement.

The biggest concern I have is how the First Amendment’s protection of religious liberty is going to square up with this radical holding. Religious liberty is the hallmark of American freedoms. But can a Mormon minister be breaking some law if he declines to marry a same-sex couple? If it’s yes, and he is punished, will some states fight back by jailing the same-sex couples who wed out-of-state, but who then become incarcerated in states that criminalize same-sex marriage?

All it takes is for one governor to state that he will disregard this holding for the whole thing to boomerang back on the Court. American democracy requires little screwdrivers, but the alleged Great Brains on the Court have just used a sledgehammer. The shockwaves have only begun.

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