Posts tagged with Plessy V. Ferguson
The ruling in the same sex marriage issue before the Supreme Court will indicate whether the United States is still a democracy or has become a judicial oligarchy. In a democracy, elected officials decide major social issues like how government will treat the ancient mating practice of marriage. In a oligarchy, non elected officials dictate policy to elected officials based on their personal views.
One of my favorite movie quotes is from "The Teahouse of the August Moon". Glenn Ford plays an American officer attempting to explain democracy to the Japanese after World War II. He says, "democracy is where the people have the right to make the wrong decisions." The statement is the essence of democracy. If elected officials make the wrong decision on behalf of the people voters can rectify the situation by electing replacement officials to make the right decisions. If non-elected officials make the wrong decisions the people have no recourse other than overthrowing the government.
People don't become infallible just because they hold a high government office even if they are absolute monarchs who have supposedly been chosen by their deities to run the government. Those of us who are familiar with the history of the Supreme Court known that it is extremely fallible. The Supreme Court has made some extremely bad decisions, particularly.when it has gotten involved in social issues with decisions involving social theories rather than law.
The decision in Dred Scott v. Sanford is easily the worst decision in the history of the Supreme Court. The Court attempted to use the case to deal with the divisive social issue of slavery. Chief Justice Roger Taney's ruling inflamed northern public opinion against slavery which many northerners regarded as immoral. The decision insured that slavery would be a major issue in the 1860 presidential election. The decision didn't cause the Civil War, but provided the catalyst to turn the controversy over slavery and broader economic issues into a war.
The 1896 Plessy v. Ferguson decision is the Court's second worst decision. The Court's acceptance of the questionable social concept of "separate but equal" condemned generations of black southerners to mistreatment including rape and murder. The Court refused to admit that "separate but equal" was nonsense until the 1954 Brown v. Board of Education decision.
"Separate but equal' wasn't the only nonsense theory the Court accepted in the late 19th Century. The Court prevented state government from protecting workers from exploitive employers by accepting a nonsense theory called "freedom of contract". Under this theory, government protection of workers supposedly prevented their "free" ability to contract with employers. The Court ignored the fact that workers weren't in a position to negotiate. They had to accept bad working conditions or risk possible starvation.
The same sex marriage issue before the Supreme Court is not about whether homosexuals should be allowed to marry. Homosexuals have always been allowed to get married and many have married individuals of the other anatomical sex. Many individuals strongly encourage their homosexual acquaintences to marry a member of the other sex.
The issue before the Supreme Court is whether to radically change the ancient definition of marriage. The arguments for same sex "marriage" are just as nonsensical as the arguments for "separate but equal' and "freedom of contract".
Marriage is first and foremost a biological process. It is the dominant human mating practice and existed before the establishment of formal governments. Marriage unites the two different types of human beings (male and female) to form a unit capable of reproducing the species. Scientists know that the male body produces a chemical that benefits the female body. Marriage seems to provide health benefits to men, but it's unclear whether chemistry is involved.
The two individuals may even become chemically addicted to each other. Addiction could explain why a woman will take her abusive husband back much like an alcoholic with liver disease will continue to drink.
Governments have traditionally protected marriage because of the benefits to society marriage provides by encouraging production of new members. Benefit programs were established at a time when the time requirements of household duties such as cooking and cleaning meant it was best for one parent to provide the income and the other to handle family duties. Such benefits may or may not still be needed, but any decision in this area should be handled by those selected by the people rather than those selected by a few politicians.
Providing some of these benefits, such as tax breaks or access to the Social Security benefits of another, may discriminate against single adults who cannot obtain comparable benefits. Government can justify this discrimination because of the potential benefit to society of the new members heterosexual marriage may provide even when a given couple doesn't intend to produce a new member.
Providing benefits. such as Social Security or health care, to same sex couples illegally discriminates against single adults. Society can receive no benefit from same sex couples. Two women cannot produce a child together. To become pregnant a woman has to obtain sperm from a man outside the relationship just like she would if she were a single adult.
The Court's intervention in social situations in the past has led to disasters such as the Civil War and southern Jim Crow laws. Decisions about social issues require months or even years of study. The idea that individuals who have no advanced education in the social sciences can decide a complex social issue after a few hours of rhetoric is lunacy.
The Court has often claimed that it attempts to "discover the law". Under the U.S. Constitution a law is a measure that has been approved by Congress and signed by the President or passed over his veto. Congress has defined "marriage" as the union of a man and a woman which is consistent with centuries of Anglo American law. If the Court changes the definition of marriage then it will be making a new law and usurping the power of Congress and depriving the voters of their right to choose the people who make important social decisions. If the Court is going to overturn this definition of marriage by the people's elected representatives, then it is time for members of the Court to also face the electorate.