Calling Richard Epstein and John Yoo, or, if the Supreme Court Legalizes Gay Marriage, How Should We Respond?

 

shutterstock_103670531Constitutional scholar Robert P. George, writing in First Things:

Dred Scott v. Sandford was the infamous case in which the Supreme Court of the United States, usurping the constitutional authority of the people acting through their elected representatives in Congress, purported to deny the power of the United States to prohibit slavery in the federal territories. It is very much worth recalling that Dred Scott was not just a case about slavery. It was a case about the scope and limits of judicial power. It was a case in which judges, lacking any warrant in the text, structure, logic, or historical understanding of the Constitution, attempted to impose their own favored resolution of a morally charged debate about public policy on the entire nation.

The Supreme Court did it again in 1905 in the case of Lochner v. New York (invalidating a worker protection statute enacted by the state legislature), and then several more times in the Warren Court era, culminating in Roe v. Wade—the Dred Scott decision of our own time. Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.

If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives.

An unconstitutional and illegitimate ruling.

That sounds about right to me. Richard Epstein? John Yoo? How does it sound to you?

Published in Law, Marriage
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  1. MJBubba Inactive
    MJBubba
    @MJBubba

    Cato Rand:

    Umbra Fractus:

    Cato Rand:

    Umbra Fractus:

    Cato Rand:

    Jojo:

    Cato Rand:

    Jojo

    …when exactly did Big Brother drag you into Room 101 and start forcing you to think things you don’t think? I just don’t buy the claim that anybody’s being forced to think anything. In fact it’s more than I don’t buy it. I know full well it’s — to use my charitable term — hyperbole — to be more frank — BS.

    http://www.breitbart.com/big-government/2013/08/22/new-mexico-court-christian-photographer-cannot-refuse-gay-marriage-ceremony-next-stop-u-s-supreme-court/

    Why don’t you ask Elane Huguenin for her thoughts on the subject?

    Gee thanks. There’s a new one. I would never have heard of her if you hadn’t brought her up. Unless they have legally redefined the word “photograph” to mean “think,” however, I don’t see your point.

    Oh, sorry. You’re right. She’s allowed to think what she wants, she’s just not allowed to express that belief or act on it without losing her business. Totally different.

    Look, I’m not defending what happened to her, but I’m sick of the hyperbole. She wasn’t prohibited from expressing her belief either. She was required to provide the service she’s in the business to provide without discrimination.

    Exactly.   She was punished for trying to exercise her religion by behaving according to traditional Christian morals in the context of conducting her business.

    So, non-discrimination law trumps her First Amendment right to the free exercise of her religion.

    • #91
  2. x Inactive
    x
    @CatoRand

    MJBubba:

    Cato Rand:

    Umbra Fractus:

    Cato Rand:

    Umbra Fractus:

    Cato Rand:

    Jojo:

    Cato Rand:

    Jojo

    …when exactly did Big Brother drag you into Room 101 and start forcing you to think things you don’t think? I just don’t buy the claim that anybody’s being forced to think anything. In fact it’s more than I don’t buy it. I know full well it’s — to use my charitable term — hyperbole — to be more frank — BS.

    http://www.breitbart.com/big-government/2013/08/22/new-mexico-court-christian-photographer-cannot-refuse-gay-marriage-ceremony-next-stop-u-s-supreme-court/

    Why don’t you ask Elane Huguenin for her thoughts on the subject?

    Gee thanks. There’s a new one. I would never have heard of her if you hadn’t brought her up. Unless they have legally redefined the word “photograph” to mean “think,” however, I don’t see your point.

    Oh, sorry. You’re right. She’s allowed to think what she wants, she’s just not allowed to express that belief or act on it without losing her business. Totally different.

    Look, I’m not defending what happened to her, but I’m sick of the hyperbole. She wasn’t prohibited from expressing her belief either. She was required to provide the service she’s in the business to provide without discrimination.

    Exactly. She was punished for trying to exercise her religion by behaving according to traditional Christian morals in the context of conducting her business.

    So, non-discrimination law trumps her First Amendment right to the free exercise of her religion.

    Yes, that’s true.  But it wasn’t the question.

    • #92
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