Tuesday, April 9, 2013


It’s a rare day when the Old Judge goes out on a limb to predict the outcome of a case before the United States Supreme Court.

It’s more rare when the prediction is that they will do what the Old Judge thinks they ought to do. But here it is:

The United States Supreme Court will reverse the lower court’s holding that California’s Proposition 8 is unconstitutional, and the Court will declare the Defense of Marriage Act to be unconstitutional.

In other words, the Court will tell us that marriage is one of those things which the tenth amendment left to the States and the people to handle.

The Constitution of the United States enumerates the powers of the Congress.

Regulating marriage isn’t one of them.

No doubt some conservative voices will be raised in protest. To many people who believe that marriage is a contract between a male and a female, declaring the Defense of Marriage Act to be unconstitutional will seem to be a capitulation to the supporters of gay marriage.

I don’t see it that way.

I think there is a vast difference between the attitudes and priorities of the American people and the culture of ‘political correctness’ which is promoted by the national media. Proposition 8 is a good example.

Where the issue has been left up to the people, the response against gay marriage has been loud and clear.

In my view the first and most fundamental principle of conservatism should be that domestic sovereignty belongs in the states.

The states have what we lawyers refer to as ‘police power.’

Police power isn’t just the criminal justice system, although that clearly is a big part of it. Police power includes the power to regulate the lives and conduct of the people to achieve the common good. It includes the regulation of trades and professions, the ownership and transfer of real estate, the care of the sick and the indigent, the education of the young.

In short, all the activities that taken together we call the economy, are things which belong under the jurisdiction of the states.

Marriage is part of it. A big part of it.

Marriage is essentially a license to start a family. And the family is the basic unit of society, the basic unit of the economy.

Strong, traditional families – mother, father and children – are good for society, good for the state, good for the economy. Where families are strong, there is less crime, less poverty, less unemployment.

The children of broken homes are five times more likely to live in poverty than those who live with their father and mother.

Study after study show that children who live with their mother and father are less likely to commit crimes, more likely to finish high school, and more likely to be employed as adults.

Gay marriage is more than a cultural issue. It affects our households, our neighborhoods, our communities. None of these things can be managed by a distant, national government.

No doubt there are cities in America where homosexual life styles are commonplace and tolerated if not celebrated. The elected representatives of the people may well legalize same sex marriage in a few states.

But there are other places. Cities and states where people want a different life.

Places where the people want traditional relationships and values to be treasured and protected.

Those folks have constitutional rights, too.

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