I was so impressed with this comment by Raymond Takashi Swenson on a previous blog entry of mine that, with his permission, I’m reproducing it here in order to give it greater prominence:
The “precautionary principle” is the watchword of the international environmental movement, the ethical standard, which many environmentalists seek to enact into law, that the burden of proof is on innovators to prove that their proposals will NOT have a negative impact on the environment. The classic embodiment of this principle in American environmental law is the National Environmental Policy Act, which prohibits all Federal agencies from undertaking any action until they have thoroughly considered all the alternative means of accomplishing their public policy goal, and assessing the impacts on “the human environment” of all the proposals and their alternatives.
If the US Department of Agriculture proposed to allow the commercial distribution of a genetically modified animal that bore the risk of significantly altering the sexual behavior of 5% of its species, there would be immediate action seeking a court injunction against that action until all the impacts of that gene mod had been assessed, not only short term but also long term, and also cumulatively with other actions being undertaken by the government which might synergistically amplify those impacts.
Yet here we are, with the President of the United States proposing we conduct an experiment on our human society, and in particular the children who are raised in our families, without even a formal attempt to ask the questions about what impacts this could have on children, families, and society. He has spent far more time delaying the utterly conventional activity of laying an oil pipeline across the central US than he has in considering these questions.
Same sex marriage is indisputably an innovation, something never on the horizon of the Congress or the State legislatures as they ratified the Constitution and its various amendments. To claim that some part of the Constitution requires all states and all local governments, let alone the Federal government, to not only give legal recognition to same sex marriage, and also to punish people who speak against it or demur from supporting it with their labor, will be seen as an utter lie, a lie that is owed no allegiance by any American. If there are issues of equity and fairness, let them be considered by Congress and state legislatures, and protect the most fundamental right under the Constitution, of the people to govern themselves, which the entire structure is designed to preserve. To tell the people that their votes count for nothing against the decision of 5 of 9 lawyers, is to create the kind of tyranny that the Declaration of Independence was intended to eradicate.
The Supreme Court is a poor vehicle for making fundamental decisions of this kind, because the assessment of the impacts of such a decision are utterly beyond the expertise and capabilities of the lawyers who sit on the court. The process they conduct is ill suited to making that kind of decision. All of the many interests of all of the people who would be affected by such a ruling cannot be properly considered in a few hundred pages of briefs and a few hours of oral argument. And the ability to make corrections based on unforeseen consequences of the decision is not part of the process.
Their injunction is to follow the Constitution as law, not a blank slate for them to write on. Their authority is derived from the Constitution, from the myriad agreements it represents of elected representatives of the citizens, and to the extent they depart from it and innovate, there is no basis for the citizenry to take their word seriously, to obey.
It is absolutely clear that nothing in the original Constitution, or in its amendments since, including the ones enacted after the Civil War, ever contemplated the intent to alter the historical meaning of marriage to include homosexual relations. The assertion of same-sex marriage advocates, that any consensual relationship must be afforded the same legal recognition and enforcement by government as marriage, was clearly not the rule when the Supreme Court decided the Reynolds case, which affirmed the Edmunds-Tucker Act and its criminalization of polygamous marriage, at a time when the 14th Amendment was already part of the Constitution, created in the ascendancy of the Republican Party whose platform had considered slavery and polygamy to be equally barbaric. The rationale for same-sex marriage is also a rationale for polygamy and the government recognition of any other kind of sexual relationship, a point which was made by the dissenting justices on the California Supreme Court in the decision which Proposition 8 overturned. The term “LGBT Rights” includes Bisexuals, who could demand that they be allowed to have a spouse of each gender.
Should the majority of the Supreme Court issue a ruling that purports to overturn the laws and constitutions in the majority of states, which prohibit legal recognition of same sex marriage, the court could face open rebellion from many of those states. The vast majority of Senators and Congressmen represent those states, and know they will never be reelected if they allow Federal sanctions to be used to enforce such a judgment. And once people realized that they could defy tyrannical rulings by the Federal courts, their respect for any other ruling will be lost. The broad consensus that is the real source of the power of the Supreme Court will be broken. Such a ruling will not “solve” any problem, but will lead to judicial chaos. It will be a suicidal gesture by the Supreme Court.