a friend just emailed me this....does the state have any interest here (meaning the
ferdinandsens?)
denverpost.com
guest commentary
Who needs legislators, anyway?
By Tom Neven
Here's a strange case for you: Carroll Ferdinandsen of Alabama was recently arrested, along with his 30-year-old wife, Alice. The judge also voided their recent marriage. Why? Well, it seems that Mr. Ferdinandsen, 52, had married his daughter. It was not the first time they'd been hauled into court, either; he had been charged with incest in an earlier incident.
There's another funny thing about this case: You don't hear the civil libertarians' outraged cries against the government's intruding into what goes on between consenting adults in the privacy of the bedroom.
Now, let's set the way-back machine way back to, oh, last April. Sen. Rick Santorum of Pennsylvania was drawn and quartered for saying that if the U.S. Supreme Court ruled that homosexual sodomy was constitutionally protected behavior and that states had no right to pass laws against it, it would inevitably lead to legalization of polygamy, polyandry, incestuous marriages and even bestiality. He was castigated for comparing homosexual sex to these acts, but that's not what he was doing. His logic was impeccable: If the court ruled that states have no right to pass laws expressing the moral will of the people, then literally anything is permissible.
And that's just what happened in Massachusetts. Its Supreme Judicial Court last week ordered the legislature to enact a law allowing for homosexual marriage. Its ruling was based heavily on the U.S. Supreme Court's Lawrence vs. Texas sodomy case last summer.
Which brings us back to the Ferdinandsens. Incest is banned in all states on moral grounds. But, you might say, incest should be illegal because the resulting offspring might suffer from genetic abnormalities. But according to the reasoning of the Massachusetts court, such concerns about child-rearing don't trump "the dignity and equality of all individuals."
The court continued: "While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage."
And besides, according to Justice Anthony Kennedy, who wrote the Supreme Court's majority opinion throwing out Texas sodomy laws, "The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."
So there we are. Moral disapproval of polygamy, polyandry, incestuous marriages, prostitution and even bestiality is no basis for a state outlawing these practices. Justice Antonin Scalia, in his Lawrence dissent, wrote, "This effectively decrees the end of all morals legislation. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity" are now unsustainable.
As with Sen. Santorum, Justice Scalia was pilloried for this opinion, but he, too, has impeccable logic on his side. Just a month ago, a civil rights attorney in Utah filed suit in federal court to throw out Utah's ban on polygamy. Based on the reasoning in Lawrence and also the Massachusetts opinion, legal scholars say he has a very good chance of winning. It's only a matter of time before we have a challenge to prostitution laws, adult incest and so on.
A larger matter lost in all this is the judiciary's usurpation of powers not granted it in the Constitution. If legislatures can be overturned willy-nilly by various courts that have no undergirding foundation except their own opinions, then the people are no longer sovereign.
In such case, the court would become a "despotic power," in the words of Thomas Jefferson. "To consider the judges as the ultimate arbiters of all constitutional questions \[is\] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy," he wrote. "The Constitution has erected no such single tribunal."
He further explained that if the court was left unchecked, the Constitution would be "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."
The moral will of the people, founded in Natural Law, is the only basis on which our government can function. As John Adams wrote, "We have no government armed with power capable of contending with human passions unbridled by morality and religion. ... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
I hate to sound like Jeremiah crying in the wilderness, but we as a people need to wake up. Just as our Colorado Supreme Court, in my opinion, ignored or deliberately misread the clear language of our state constitution with regard to redistricting, courts around the country are making legislatures superfluous. Why go through the political process of convincing a majority of people that policy A is better than policy B if judges can later throw the whole thing out, often on arbitrary grounds?
The other day, I told some friends that I keep half expecting the Supreme Court to declare the Constitution unconstitutional. They laughed.
Sadly, I wasn't joking.
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Tom Neven is a freelance writer based in Colorado Springs and is a former Colorado Voices columnist for The Post. |
