The majority's conclusions were reached by standing on heaps of errors which had been piled up by the judicial excess and over-reach of prior courts. Let me be plain, I favor a healthy, functioning judicial branch able to check legitimate abuses of power by either the Executive or Legislative branches. But that is not what we have here. Rather, the Court is throwing away what little legitimacy it has left in the Heartland of America by squandering its waning credibility on inane decisions like this one. Meanwhile, the Executive branch is systematically destroying the Constitution and the courts do little or nothing.
First of all, in a Localist Nation, no case like this could have ever been brought to the court. There would be nothing to fight over. That's because the case began when a lesbian sought a spousal exemption to federal estate taxes from the death of her partner in a "marriage" which was recognized by the state of New York. In a localist nation there is no need for the central government to define what a marriage is for tax purposes because all central government taxes on individuals, whether on income or on sales or one's estate, are prohibited. The states are to serve as a barrier or intermediary between the central government and the citizen. Uncle Sam should never even know you are alive unless you choose to have some special business with him.
But even in our nation as it is, this case should never have been heard by the Supreme Court. They went out of their way to meddle. The Constitution only authorizes the Supreme Court to hear "cases or controversies" between parties. Once the District Court ordered the government to pay the money the plaintiff believed they were owed, and once the government agreed with the plaintiff that DOMA was unconstitutional, there was no need for the Supreme Court to hear that case, nor was there any constitutional authorization for them to hear it. There was no longer any case, nor any controversy between the parties to the case.
So how did Kennedy justify the Court arrogating itself into making this ruling? He acknowleged the difficulties of article III justification, but appealed to a judicially-invented "prudential considerations" doctrine. Basically it is fancy language for "we judges have decided that we can step into anything we want, whether there is still a case or controversy or not, and any Article III limitations on our ability to do so can go do something biologically impossible to themselves." OK, well the original flowery language in Wrath to describe "prudential considerations" was not quite so blunt. It said, prudential considerations amount to “countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.” Right. "Outweigh the concerns underlying the usual reluctance to exert judicial power." How do they sleep at night?
Kennedy used the fact that someone presented a Friend of the Court Brief which posited that DOMA was constitutional as the excuse he needed to jump into the case even though the parties to the case had settled. This is the same court system which won't let citizens even have standing to present cases on issues they want to ignore- like Obama's eligibility. They use the issue of standing when they want to short-circuit something and then ignore the issue of standing, and the constitution's limitations on their reach, when they find it convenient.
These are the same hypocrites who refused to hear the case when lower courts threw out Proposition Eight in California. In that case the people voted to amend the Constitution of that state to define marriage as between one man and one women. Suddenly, because in this case the state of New York supported homosexual marriage, the Supreme Court became the biggest state's rights advocates since George Wallace. Despite what they did to California last time, this time they were adamant in insisting that the constitution gives the states the right to define marriage. Since New York legalized homosexual marriage they were all for state's rights.
See how that works? When a state takes a position the courts like, state's rights matter. Since the people of California affirmed traditional marriage, state's rights don't matter. Such is the fundamental and pervasive intellectual dishonesty of men like "Justice" Kennedy. If DOMA had attempted to define marriage for the states on a federal level, Kennedy would have a point, but that is not what DOMA did. It only attempted to define marriage for the purposes of Federal law, a rare and admirable restraint on the part of Congress. Would that the black-robed tyrants on the bench learn that virtue.
Kennedy's claim that DOMA was "unconstitutional as a deprivation of the liberty of the person protected by the fifth amendment" is madness. If we are denying Bill and Frank "liberty" by refusing to recognize what they think their relationship ought to be then what happened to our liberty to either approve, or withhold approval? Does every child in the class have to get a gold star regardless of what we think of their choices in order to comply with the 5th? Does anyone reading this seriously believe that the Founders wrote that in the 5th amendment so that the Federal government would have to include homosexual relationships under any federal definition of marriage?
But the kicker is that the amendment does not even say that the government can never deny people liberty, it only says that it cannot do so "without due process of law." In this case, due process was followed. The law was properly enacted by Congress, and until recently properly enforced by the Executive Branch. The fifth amendment is only meant to stop extra-legal action by the federal government, but Kenndy and his co-conspirators now use it as a judicial veto of laws they personally disagree with.
Suppose there was a law that said people convicted of molesting children could not be considered qualified persons to adopt children or run day care centers. Suppose there was another law that said those who engage in behaviors that result in a higher HIV rate could not give blood. Do such laws "restrict the liberty" of those persons? Maybe a little, but if such laws were passed through normal legislative channels then they were done under the due process of the law. So even if one subscribes to the absurd notion that I am restricting Bill and Frank's liberty if I don't grant state approval to their relationship, under the 5th amendment the government is permitted to restrict liberty when they do so according to the due process of law. If they could not, then the government could never restrict anyone's liberty no matter how reckless or even criminal their actions.
The 5th is meant to prohibit the Executive branch from taking unilateral action without authorization from Congress. Right now the Executive branch is violating the 5th amendment in ways that are numerous and serious. It is a slap in the face to all American citizens for Kennedy to find this a violation of the 5th amendment while his court has been all-but silent on the sinister and massive affronts to the 5th amendment under both the Bush but more especially the Obama administrations.
Lastly, and this is the most important part of this article with respect to its application to localism, this case is a perfect example of why all government power must be dispersed, including and especially the power to define rights. The first pillar of localism is that the central government ought to be limited in its power to define rights; limiting them to enforcing freedom to leave a jurisdiction and retain property within one. At first it seems like a paradox that true rights are better protected when the power to define and enforce them is dispersed, but the resolution of the paradox is found in a familiar truth- power corrupts.
The power to define rights is the power of absolute tyranny, for when something is a right, it is beyond the scope of the people, and beyond needing the approval of the government or the ballot box. Rights are a claim against the majority, and against the rulers saying "this area of life is off limits to government intervention and not subject to popular vote."
If one small group holds this power, without any checks and balances, they will soon abuse it in just the manner that modern courts have done. They will bench-legislate their personal preferences into law without the consent of the governed (from which all just power is derived per the Declaration of Independence). They will invent "rights" which do not exist, and they will ignore rights which do. They will conjure up "group rights" and "positive rights." They will stand on precedent when it suits them and ignore it when it does not. All fixed basis for law will vanish as one group then another attempts to re-litigate their claims. All this will make the courts the ultimate target for co-option by moneyed interests, for in such an abhorrent arrangement as we presently have to control the courts is to control the nation.
No my friends, it is not just that our courts have failed, it is that in any system arranged as ours is such courts must fail. The outrageous and offensive situation we find ourselves in is not an unfortunate outcome from an otherwise good system, rather it is an inevitable outcome based on a systemic and structural flaw in our current governance- in contradiction to the First Pillar of Localism (or for the Nook). That is, the power to define rights is centralized and concentrated in one small set of human hands never meant to wield such vast power over the rest of us.
