Disease of the Bench
Yesterday, the Constitutional Court of South Africa (”CCSA”) decided to legalize same-sex marriage by fiat. The CCSA’s fluffy opinion is laden with the individualistic niceities of love and devotion but barren in logic and reason.
The CCSA, like many advocates of same-sex marriage, reshapes the societal rationale for traditional marriage and molds it to fit their radical ideals. That is, marriage is not about proceation or the rearing of children. Rather, marriage is really an event that celebrates the individual wants and desires of two people. That individuality not their procreative-potential union is what society was and is protecting when it decided to enact legislation protecting and sustaining traditional marriage. Nothing could be farther from the truth.
The CCSA’s handling of the “procreation argument” illustrates their penchant liberalism. [See paragraph 86]:
However persuasive procreative potential might be . . . from a legal and constitutional point of view, it is not a defining characteristic of conjugal relationships. To hold otherwise would be deeply demeaning to couples (whether married or not) who, for whatever reason, are incapable of procreating when they commence such relationship or become so at any time thereafter.
As I noted in an earlier post, procreation is the main reason why most marriages take place and justifies government protection of that relationship. If procreation is removed, then what difference is there to the nation-state between the union of one man and one woman and the union of two men or two women who admit they are madly in love with each other? Individually, there may be no difference (both heterosexual and homosexual couplings are equally devoted and loving) but societally there is a big difference. Government isn’t in the business of promoting love. However, it is interested in maintaining its population and the stability of its societial framework. Same-sex marriages inherently cannot produce children together. That is why the CCSA and other courts have been forced to disassociate procreation from the institution of marriage.
Disturbingly similiar to Massachusetts, the CCSA gave the legislature an ultimatium–either you legislate same-sex marriage within one year or we’ll be forced to humbly perform the constitutionally-empowered job ourselves. Even more disturbing than that is the dissenting opinion of Justice O’Regan. Justice O’Regan dissented not because she disagreed that to deny marriage rights to same-sex couples was unconstitutional. Rather, O’Regan wanted to legislate same-sex marriage from the bench and completely leave out the South African legislature:
In my view, this Court should develop the common-law rule that as suggested by the majority in the Supreme Court of Appeal, and at the same time READ IN THE WORDS to section 30 of the [Marriage] Act that would with immediate effect permit gays and lesbians to be married by civil marriage officers (and such religious marriage officers as consider such marriages not to fall outside the tenets of their religion). [See paragraph 169].
And this:
The doctrine of separation of powers is an important one in our constitution but I cannot see that it can be used to avoid the obligation of a court to provide appropriate relief that is just and equitable to litigants who successfully raise a constitutional complaint. [See paragraph 170].
Yeah, “constitutional” according to you, Judge. Do you dread Justice Ginsburg or Justice Kennedy writing that same language about the U.S. Constitution? ” Yeah, separation of powers is a important constitutional principle, but, heck so is the right to privacy. Same-sex marriage for everyone!”
A final capstone:
An Act of Parliament conferring the right to marry on gays and lesbians might be thought to carry greater democratic legitimacy than an order of this Court. The power and duty to protect constitutional rights is conferred upon the courts and the courts should not shirk from that duty. The legitimacy of an order made by the Court does not flow from the status of the institution itself, but from the fact that it gives effect to the provisions of our Consitution. [See paragraph 171].
In other words, the CCSA’s order is democratically legitimate because the CCSA is the legitimate mouthpiece of the constitution. Not true, at least in America. Both the Executive and Legislative branches can act constitutionally. Justice O’Regan’s circular powergrab smacks of preening elitism.
The CCSA decision (especially O’Regan’s dissent) showcases the liberal disease of judicial superiority and activism that comforts radical judges when they impose same-sex marriage by fiat–and why if we have more than 4 activists on our Supreme Court, same-sex marriage (despite overwhelming public opposition) will be thrust on America too.