Decision on Pa. gay marriage ignores rule of law

Posted: May 23, 2014

GOV. CORBETT has said he won't appeal the judicial fiat legalizing same-sex bliss between the Alleghenys and the Poconos. He has done exactly what our long-tressed attorney general has done and abdicated his duty to Pennsylvanians who care about the rule of law.

So it's fairly certain that Adam and Steve and Madame and Eve can start wiggling to the electric boogaloo.

There is, I say with the manic certainty of Davy Crockett at the Alamo, hope to live and fight another day.

But I gotta tell you, it's looking fairly grim at the moment.

Of course, if you're dancing around that pot of gold on the other side of the rainbow, it's anything but grim. The sun of equality is shining, melting with its warmth the frozen hearts of the homophobes, making Pennsylvania - that prodigal Northeastern child - welcome at the progressive picnics once again.

U.S. District Judge John E. Jones III took the Keystone baby and, instead of cutting her in half like old Solomon, flung the mewling child into the hands of the LGBT community.

And there's sweet Auntie Kathleen Kane, just itching to hold her in those imperial arms.

So, are you still wondering what I think about the decision to legalize gay marriage in Pennsylvania?

Nope, didn't think so.

Hyperbole aside, I think that anyone who respects the rule of law should be deeply troubled by this decision. The LGBT community has been amazingly effective in convincing us that same-sex nuptials are not only OK, not only normal, but that they are in fact the way to save marriage by emphasizing the importance of the institution.

Yup, well, tell that to Bishop Gene Robinson, the Episcopal prelate who famously married his boyfriend of a quarter-century a few short years ago, and then filed for divorce this month.

I guess the normal part still makes sense. Seems that gays are just as likely as heteros to, ah, screw things up.

I have to congratulate the other side. They were masterful with their sleight of hand, using emotion and emotional blackmail in place of solid legal reasoning for their very real, historic victories. It's not an easy thing to convince people, judges especially, that while polygamy and incest are still verboten and harmful to society, same-sex nuptials are absolutely different.

We still cringe at the thought of Donny and Marie getting it on together (or, worse yet, Donny, Marie and Jimmy) and we rush to distinguish how toxic such unions are when there is no significant legal difference between what the LGBT community argues in its favor (that marriage is a fundamental right that should be available to all) and letting anyone who wants to get married get hitched.

This is where I get annoyed, as a lawyer and as someone who likes her T's crossed and her I's dotted.

It's one thing to say we want to treat gays, lesbians and the rest with fairness and dignity and quite another to twist the Constitution around to give us cover for cultural sympathy. To argue that "sexual orientation" is of constitutional importance such that it mandates carving out special preference and privilege is dishonest. Supreme Court Justice Antonin Scalia saw that in his Windsor dissent two years ago, but, of course, he was tarred with the scarlet "H" for homophobe.

I searched through Judge Jones' opinion to find one legitimate reason to treat gay unions any differently from other variations on the one-man-one-woman theme and I couldn't find one. The closest I came was this line:

"That same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection."

Of course, throwing around the word constitutional several times in the same sentence does not make you Brandeis or Holmes. It doesn't even make you Judge Judy.

What it does is make your reader ask, like tiny Clara Peller, "Where's the legal beef?" Unless you can explain how same-sex marriage (as opposed to marriage in general) is a fundamental right, you're just playing to the cheap seats. That's great for theater. It's not so great for jurisprudence.

I am quite certain I've persuaded no one to question the propriety of the same-sex juggernaut. I am resigned to the fact that, for the enlightened, I've cemented my place as a particularly visible homophobe.

But I would invite the honest readers out there to examine their consciences, and decide whether being warm, fuzzy and tolerant is worth the damage being done to our system of laws by these cultural acrobatics.

And one last thing: Since we're all about "evolving sensibilities" here, who's willing to overturn Roe v. Wade, given the fact that millennials are increasingly pro-life?

Get back to me on that, OK?


Christine Flowers is a lawyer.

Email: cflowers1961@gmail.com

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