To say last week was a bad week for the Constitution, rule of law, and democracy in America would be a gross understatement. The question now is how does Louisiana respond to these affronts?
In its King v. Burwell decision, the U.S. Supreme Court majority simply maimed the Constitution, leaving it for dead with tortured reasoning to produce a political outcome that rivals Dred Scott v. Sandford for its politicization and incoherence. By not understanding “established by the state,” the majority ruled that words have no meaning except that which it decides to give them according to whatever ideology at least five archons believe in, should they think that the democratic institutions would fail to follow the same.
However, as this was a matter of federal law, essentially Louisiana need do nothing as a result. With the law dealing with health insurance exchanges that made it optional for states to establish, it can continue to save money by making the federal government pay for these (and proportionately lightening the burden on state taxpayers, even as they pay for this in a much smaller proportion on their federal taxes) until which future time they are abolished when meaningful and genuine health care reform replaces the current unsustainable law that empowers the state at the expense of the individual.
The reasoning used in Obergefell v. Hodges was not as egregiously counterfactual only because changing societal attitudes for the last few decades had undermined and degraded the essential meaning of marriage which makes it worth protecting as an asset to the state. Simply, marriage between a single man and single woman is the optimal vehicle by which to provide future citizens to sustain the state, and thereby should have a privileged status whereby the state encourages this through tax policy, rights of legal decision-making for others, and survivorship. Yet over the decades this special relationship was devalued into becoming just a ceremony and piece of paper, where in the culture the ability for a man and woman to conceive and raise children together because of their mutual love became incidental to marriage as an ancillary to fulfilling lustful desires.
This transformation facilitated the Court’s use of the 14thAmendment’s Equal Protection clause yet again to bulldoze over the 10th Amendment’s reservation of power to the states. Even more dangerously, for the first time it bases this on a behavioral characteristic of individuals not otherwise explicitly protected elsewhere in the Bill of Rights, which could lead to all kinds of government mischief used to subjugate certain groups in order to empower others. The majority’s conjured and weak argument means one could marry whomever as a result of marriage being considered as a tool for acting out individuals’ lust rather than as a sacred bond to aid the human family, because the “intimacy” and “loving” of it all was in such need of fundamental protection.
If in fact “marriage” is whatever individuals think it should be to be “complete” in “personhood,” which thereby overrides whatever purpose the state may have for it, then it no longer has meaning as a concept that the state should concern itself with. Thus, the next time the Legislature meets, it should remove Louisiana from recognizing any marriage of any kind.
Such legal changes (involving the repealing or amending of a couple of hundred different laws) could take effect on Jul. 1, the beginning of fiscal year 2017, and give six months for a transition period where during then any marriage performed before Jan. 1, 2016 would qualify for recognition connected to civil law. For example, the married filing status for income tax returns, divorce proceedings and settlements, spousal rights in making legal decisions for each other, etc., would continue through Dec. 31. (Survivorship rights would be grandfathered in.) After then, state and local court officials no longer would have the power to perform marriages nor would parish officials keep such records. (Some minor housekeeping attendant to this should occur with the Constitution to remove outmoded language, which would have no effect without civil marriages existing.)
In that interval, couples married and intending to get married could get legal documents in order such as prenuptial agreements (if desired) and powers of attorney regarding their relationship; the state could assist in the process by producing model forms only needing the two (or more) persons’ signatures and notarization to make them binding contracts under Louisiana law. Because after that date, following the lead of the U.S. Supreme Court that rendered it so, marriage as a concept distinguishing it from cohabitation would have no legal meaning.
None of this would interfere with marriages outside the civil realm; churches could continue to solemnize weddings of however many adults, children, blood relatives and species (as the Court’s ruling throws open the door to all of these arrangements) they like, and even simpler methods such as jumping the broomstick can be employed. But none of it will matter in a civil sense, although the state obviously can continue to maintain laws to prevent certain conduct such as sexual relations with minors, incest, and bestiality.
As a civil construct that has any relevance to the state and benefits that it may bring to the state and society, the Court has struck marriage a comatose blow from which it never again by itself function properly. It’s time for Louisiana to show mercy to the patient and finish the job those enlightened overseers began. At least that may distract us from mourning as a consequence of these rulings making society coarser and individuals’ liberty less secure than ever.