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‘Same-Sex Marriage’ Versus Judicial ‘Good Behavior’

Building the Resistance to Same-Sex Marriage…
(tenth article in a series)

by Edwin Vieira, Jr.

“Same-sex marriage” may be an affront to common sense, an oxymoron, and even an ontological impossibility.

But as the product of a type of behavior familiar in contemporary politics, its promotion is nothing really new.

The contention that the government may impose “same-sex marriage” on society is just a particularly egregious example of the dark art of “law laid down by linguistic legerdemain”: namely, the usurpation of governmental authority through alteration of the meaning of a legally operative word or phrase by affixing to it some tendentious adjective or other qualifying term.

Simply by transmogrifying definitions, entirely new sets of legal rights, powers, privileges, immunities, duties, exposures, and liabilities can be created out of essentially nothing more than plays on words. For example, prefixing the noun “speech” with the pseudo-adjective “hate” creates the novel legalistic category of “hate speech”, which supposedly is not protected by the First Amendment, and therefore can be subjected to pervasive governmental regulation.

With no greater difficulty than that, public officials can arrogate to themselves a license to impose censorship and to penalize individuals who expatiate vehemently on prohibited subjects. This process is also capable of aggregating such synthetic powers. For instance, once “same-sex marriage” receives a legalistic imprimatur, those who express a strong aversion to it can be condemned for “hate speech”.

Although such verbal tricks can be performed in legislative statutes and administrative regulations, the judiciary’s method of continuously generating myriad “precedents” on an ad hoc “case-by-case” basis — in each of which instances judges can make subtle, incremental changes in the law through supposed “constructions” and “applications” — provides the widest latitude for alterations of this kind.

Specifically, judges have expanded Congress’s limited constitutional power “[t]o regulate Commerce . . . among the several States” into a discretion to regulate, within and throughout the States, not only actual “Commerce”, but also matters which have nothing whatsoever to do with “Commerce”. This feat only required ruling that the power to regulate “Commerce” entitles Congress to regulate whatever is capable of “affecting Commerce” — even though the latter is admittedly not itself “Commerce”, or else the modifier would be unnecessary.

Employment of the participle “affecting” has resulted in a legal elephantiasis of the term “Commerce” (and thus of Congress’s power with respect to “Commerce”), without the inconvenience (and honesty) of amending the Constitution for that purpose. More generally, by invoking “the living Constitution” — which must be distinguishable from “the Constitution” simpliciter, or else the participle would be superfluous — judges can rationalize to their own satisfaction the expansion of every governmental power to whatever degree they dare.

Self-evidently, though, “law laid down by linguistic legerdemain” is most effective — and most dangerous — when the process occurs through the redefinitions of words which do not appear in the Constitution. After all, phrases such as “affecting Commerce” and “hate speech” depend in the final analysis upon nouns the meanings of which are defined and thus circumscribed by the legal theory, history, and practice peculiar to the United States.

Even by recourse to imaginative adjectival or other modifiers, one can go only so far in attempting to bend the received legal meanings of such terms before the deception becomes patent to every observer.

In contrast, the import of and justification for “same-sex marriage” depend upon plastic and controversial conceptions concocted from such sources as sociology, psychology, and fashionable ideologies, not upon specific legal terms with well-known and relatively narrow technical meanings.

And necessarily so. Inasmuch as marriage has preexisted the government of the United States for centuries in Western civilization (and even for millennia if other civilizations are considered), the government cannot claim to have been the origin either of marriage itself or of the definition of marriage.

The U.S. Constitution nowhere mentions marriage or any matter material to it. So the government can point to no historical precedent or present power under color of which it can purport to equate “same-sex marriage” with marriage for any purpose. No power, that is, unless public officials enjoy an unbridled license to redefine common words ad libitum — because if “same-sex marriage” were the same as marriage the adjective would not be necessary.

(And perhaps not to define those terms at all, under the pretense of equating them. For the proponents of “same-sex marriage” have yet to clarify precisely what definition of marriage allows for participation on equal terms both by two individuals of opposite sex and by two individuals of the same sex — and yet excludes such arrangements as “plural marriage”, “child marriage”, “incestuous marriage”, or perhaps even “interspecies marriage”.)

It should be obvious that for any public officials to claim the discretion to redefine words in order to expand their powers is to misuse or abuse their authority.

Through the Looking-Glass exposes the ulterior purpose of such an assertion as well as its audacity:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Such attempts by political wordsmiths “to be master — that’s all” are arguably less dangerous as far as the Legislative and Executive Branches of the government are concerned than where the Judicial Branch is involved. For members of the Legislative Branch who persist in perversely redefining words in the course of enacting statutes can be removed from office by the electorate at regular intervals, or even can be expelled from Congress by its other members.


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