Ignoring the substance of the matter, I would like to make a point about the process of assessing the "Constitutionality" of laws.
First of all, there is nothing in the Constitution that says the Courts can make the final decision on what is "Constitutional" and what is "un-Constitutional." This is legal tradition, and it is a logical extension of the system that we have. Somebody has to compare what Congress does with the Constitution to determine whether it complies.
Several years ago, the Supreme Court of the Commonwealth of Massachusetts decided that the Massachusetts constitution prohibited that great state from disallowing gay couples from availing themselves of the benefits of the state's marriage laws. Again, for the purpose of this discussion I will ignore the substance of that holding.
In response to that development, the U.S. Congress passed the Defense of Marriage Act, and many other states passed similar legislation, basically saying that we are not going to recognize gay "marriages," no matter what.
Well, these laws run afoul of the "full faith and credit" clause of the Constitution, since both the Feds and all the other states are required to recognize the enactments of the other states; thus, if Massachusetts "marries" someone, all of the other states MUST recognize and accept that status, even if they don't allow people to get married in their own state.
Be that as it may, when the USSC evaluated DOMA, they acknowledged this failing in the law, but the DECLINED TO SAY that the right to marry someone of the same gender is protected or facilitated by the Constitution ("equal protection," and so on).
Now we have a Federal court judge in Pennsylvania declaring that there IS such a right in the Constitution. I find it odd that nobody else noticed this right in the 225 years since the Constitution was first ratified.
What prevents the Governor of Pennsylvania from basically telling this Federal judge to go fuck himself? Basically saying that until the USSC rules on this fundamental issue, Pennsylvania does not consider itself to be bound by this one guy's opinion.
He could then issue an executive order, valid only in Pennsylvania, prohibiting any County officials from accepting marriage license applications from "gay" couples, etc.
Ultimately, on what basis do we accept the premise that the Judicial Branch has the power to simply ignore and avoid the actions of the other two branches of government, as well as the people? We DO currently accept that premise, but it is not based on anything other than tradition.
First of all, there is nothing in the Constitution that says the Courts can make the final decision on what is "Constitutional" and what is "un-Constitutional." This is legal tradition, and it is a logical extension of the system that we have. Somebody has to compare what Congress does with the Constitution to determine whether it complies.
Several years ago, the Supreme Court of the Commonwealth of Massachusetts decided that the Massachusetts constitution prohibited that great state from disallowing gay couples from availing themselves of the benefits of the state's marriage laws. Again, for the purpose of this discussion I will ignore the substance of that holding.
In response to that development, the U.S. Congress passed the Defense of Marriage Act, and many other states passed similar legislation, basically saying that we are not going to recognize gay "marriages," no matter what.
Well, these laws run afoul of the "full faith and credit" clause of the Constitution, since both the Feds and all the other states are required to recognize the enactments of the other states; thus, if Massachusetts "marries" someone, all of the other states MUST recognize and accept that status, even if they don't allow people to get married in their own state.
Be that as it may, when the USSC evaluated DOMA, they acknowledged this failing in the law, but the DECLINED TO SAY that the right to marry someone of the same gender is protected or facilitated by the Constitution ("equal protection," and so on).
Now we have a Federal court judge in Pennsylvania declaring that there IS such a right in the Constitution. I find it odd that nobody else noticed this right in the 225 years since the Constitution was first ratified.
What prevents the Governor of Pennsylvania from basically telling this Federal judge to go fuck himself? Basically saying that until the USSC rules on this fundamental issue, Pennsylvania does not consider itself to be bound by this one guy's opinion.
He could then issue an executive order, valid only in Pennsylvania, prohibiting any County officials from accepting marriage license applications from "gay" couples, etc.
Ultimately, on what basis do we accept the premise that the Judicial Branch has the power to simply ignore and avoid the actions of the other two branches of government, as well as the people? We DO currently accept that premise, but it is not based on anything other than tradition.
