Steve, I hope you don’t mind this, but I’m about to punk you really badly.
First off, before you go shooting your mouth off about what is Constitutional and not, or a violation of separation of powers, as you did here in the post immediately below this one, it would behoove you to take your head out of your ass, so that you can see the text of the Constitution.
Under Article III, “Judiciary”, it says:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
Got that? Only the Supreme Court is actually a Constitutionally established court. The others exist at Congress’ whim. That means that the federal courts – as to their existence – are Congress’ bitch.
A little further on, the oft-cited, seldom read Article III states that:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.
So the Supreme court can hear those cases, and Congress can’t say anything about it. Right?
Just after that, the Constitution gives Congress the power to limit Supreme Court jurisdiction, in what I like to call the “Congressional jurisdictional pimp-slap clause.”
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Oooh, that’ll leave a mark. So Congress can put certain types of cases out of the reach of Supreme Court jurisdiction, and since the lower federal courts are created at Congress’ whim, that power certainly applies to the lower courts as well.
There is nothing unconstitutional about this.
The point of excluding the federal courts from jurisdiction over cases seeking to (1) find a federal right to gay marriage; or (2) seeking to enforce a gay marriage of one state in a state that does not recognize gay marriage, is to prevent the courts from usurping the democratic process with respect to this most controversial of subjects.
I happen to agree with this approach, because I think fundamental changes in society’s order, should come from the people, not from some goddamned lawyer like me. Especially not from some goddamned lawyer whose parents paid for his really nice education at Harvard, who has some nice Ecuadorean chaps over to do the lawn every week, who goes to the right liberal Episcopalian church, and who sits on the federal bench primarily because he gave generously to one presidential campaign or another.
The best way for people to live, is the way they want to live, and relying on democracy, either of free choice, expression of communal will at the polls, or from the people’s representatives in the legislature, is the best way to preserve that. You want gay marriage? Fine, move to a state where they vote for it, or get people in your state to vote for it. Just don’t try to get some left wing fucknut lawyer, who sits where he sits because he is properly connected and well privileged, to impose your social re-engineering on me.
And before you go off on my extreme bigotry, I’d like to point out here that I don’t have a particular axe to grind against gays. My sister is a dyke, and the only problem I ever had with her is that when I was single, she pulled a lot more chicks than I did. In fact, I’d go so far as to say I favor some type of legal relationship – civil union? – to legitimize long term stable gay marriage. Sure, I’m morally opposed to it, but it seems to me that the purpose of the state isn’t to always impose a particular moral code, but to boost social institutions (some of which are morally based) that improve the social fabric and help people live better lives. And frankly, gay couples could use it; I’d rather have them take seriously the notion of commitment, and privilege it (as most heterosexuals do) over the notion of having anonymous group sex every weekend. Sure, that latter is fun, but frankly, I don’t want to live in a neighborhood surrounded by people on the prowl. So I’m more than willing to go with the lesser evil.
Sure, waiting for “the people” to come around is not satisfying, but you know, neither was the slow crawl out of lessaiz (sp?)faire capitalism – and who did better, the market capitalists, or the Reds, with their top-down re-engineering of society? And it’s not exactly like slavery – the normal comparison you hear from gay activists. Last time I checked, the local fashion houses paid pretty well, and where I live there’s actually a huge gay professional class. (Although you could make an argument about indentured servitude and the journeymen filling the ranks of the ballet and theater, but I won’t go there).
You want gay marriage, fine, open a political action committe, lobby for it, convince people it’s the right thing to do, and have them vote for it. Again and again if you want, I don’t care.
But how dare you take conservative positions down the line, and rail on big-brother-ism and state-ism, and then when it comes to a fundamental question about the basic, central building block of society, to not only demand patriarchal big-brother-ism and a top down solution, but to mis-deploy a particularly uninformed argument about the Constitution to do so. Railing against the rule of judges when they use to the commerce clause to extend the reach of government into private businesses, is a whole lot less convincing when you are calling for a judicially ordered re-engineering of basic social institutions. When conservatives and libertarians show abundant illiteracy of the documents they supposedly revere, it gets used to undercut all other conservatives who would would rely on the same texts to support their argument.
Relying on the Constitution when it suits you, and disregarding it when it doesn’t (or worse yet completely misquoting it) basically turns you from someone with principles, into a partisan hack who will use any argument at hand to win the fight. Now when I do legal work for a client, I will use the arguments at hand to win. But in my avocation, doing some legal work with conservatives and libertarians, legal work where I am taking a stand based on my beliefs, I am willing to ride the Constitution start to finish, because it’s what I stick with. Most of the time it leads to a good ending and that’s why I believe what I do. Yet on some public policy issues, you crash in flames because the damn thing isn’t all things to all people. But that’s what you have to do if it’s the thing you cling to.