Criminalizing Sin

With the nomination of John Roberts, Jr., the government is again misleading the public with cliche phrases such as "strictly interpreting the Constitution, not legislating from the bench." Although I know nothing about Roberts and have no opinion about the propriety of choosing him as a nominee to the high court, I am surprised that the President did not choose a woman and chose such an inexperienced judge when there are far more experienced jurists on the Circuit courts of the nation.

That said, the rhetoric of the Religious Wrong regarding abortion and gay rights illustrates that, contrary to its rhetoric, they are looking for someone who will legislate from the bench and will not follow the Constitution. Albeit, only if that jurist legislates in a way they like. For example, there is no dispute that the Constitution does not mention anything about gay marriage. It says nothing, in fact, about heterosexual marriage. The argument from the Wrong then goes that, because it is not mentioned, it is not allowed and should be banned nationwide. While this contention may be appealing upon first glance, a cursory review of the Constitution belies the argument.

Amendment IX

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Amendment X

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Last I checked, the power of marriage was not delegated to the United States by the Constitution and, thus, it is reserved to the states to decide. Once the states decide to weigh in on the gay marriage issue, a jurist must then whether gay marriage is a privilege and whether the equal protection clause protects the right to marriage for everyone.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution forbids discrimination among citizens with respect to privileges and equal protection of the laws, which presumably includes marriage. In order to deny gay marriage based upon Biblical mandate, one must venture outside the Constitution, thereby becoming a "judicial activist" who legislates from the bench. Without the Bible, there is no basis to deny that right.

What seems to be happening with GW and his posse of religious warlords is that they want to outlaw sin (although one person suggested that the fight against gay marriage is a manipulation of religious people to protect insurance companies from having to insure more people). They want to turn the American justice system on its head by banning anything that the Bible regards as sinful. What will be next? Will adultery become a crime like it is in Iran, although that would probably cast a net too wide for the comforts of most politicians. As GW and the Religious Wrong continue to pick and choose sins and arbitrarily terrorize and criminalize those who would otherwise be protected by the Constitution, the U.S. will become ever-closer to resembling Saudi Arabia and Iran.

Democracy consists of choosing your dictators after
they've told you what you think it is you want to hear.
Alan Corenk