When given the chance to register an opinion, the majority of Americans express their desire to keep intact laws and government policies that respect the God-ordained natural family. The people of California did so in Proposition 8. Many of them are justifiably outraged at the decision taken by federal Judge Vaughn R. Walker that purports to invalidate their will. The key to Judge Walker's assault on the constitutional sovereignty of the people of California is found in these words:
A state's interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious belief without an accompanying secular purpose.
The U.S. Constitution explicitly forbids the U.S. government from enacting any laws "respecting an establishment of religion." The Constitution nowhere prohibits the state governments from doing so. (In fact, when the people in their respective states first ratified the U.S. Constitution, almost all of them had laws dealing with this subject in some way. Nothing in the Constitution invalidated those laws. They were modified in the course of the 19th century, but by the people acting in and through their state governments.) Any government power to address issues connected with the implementation of religious belief is therefore, in accordance with the 10th Amendment's clear provision,"reserved to the States respectively, or to the people."
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As I observed in a recent post on my blog, as well as in my last WND columns, the Constitution plainly mandates that the Supreme Court of the United States "shall have original jurisdiction" in cases in which a state is a party. The notion that the U.S. Congress may, by legislation, amend the Constitution's imperative in this regard requires that we accept the proposition that congressional legislation may assign to the inferior courts the first adjudication of cases the Constitution imperatively assigns to the Supreme Court for action in the first instance. But for such legislation to be constitutional, cases already undertaken by inferior courts must nonetheless be decided in the first instance by the Supreme Court, such that the U.S. government's jurisdiction over such cases originates where it does not begin, or else begins where it does not originate. As in Euclid's sixth proposition, this involves a patent absurdity. It incidentally also leads to a situation in which the Supreme Court is called upon to exercise appellate jurisdiction in cases the Constitution explicitly excludes from the list of cases over which it has such jurisdiction.
But the jurisdictional challenge goes beyond this objection to the involvement of the inferior U.S. courts. The joint effect of the First and 10th Amendments to the Constitution plainly excludes the whole subject of religious establishment from the purview of the U.S. judiciary at any level whatsoever. All the members of the U.S. judiciary can constitutionally do on this subject is to make note of the fact that they have, per se, no lawful jurisdiction over it. This is re-enforced by the provisions of the Constitution's 14th Amendment, which says that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Constitution reserves to the states and the people the power to deal with the subject of religious establishment, thus explicitly recognizing that it is their privilege (reserved legal prerogative) to do so. States that purport to accept the assertion of a U.S. government power by any means to make law on this subject thereby enforce a usurpation of power that abridges this constitutional privilege. By doing so, they plainly violate the 14th Amendment's prohibition.
Thus, the jurisprudence that the federal courts have constructed on the basis of the Establishment Clause involves usurping a power the Constitution reserves to the states respectively, or to the people. On account of this usurpation, the U.S. judiciary has carried out precisely the project the Establishment Clause exists to prevent, that is, the attempt to establish a uniform national regime dictating how religious beliefs and practices are or are not reflected in law.
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Judge Walker relies upon this inverted and unconstitutional jurisprudence to pretend that the state of California "does not have an interest in enforcing private moral or religious belief without an accompanying secular purpose." Actually, it is Judge Walker and the U.S. government that are forbidden by the U.S. Constitution from taking, per se, any lawmaking interest in matters affected by moral or religious belief. On the other hand, on account of the 14th Amendment, the state governments are required to respect the privileges and immunities of citizens of the United States, making it their duty to defend their state's constitutionally reserved power to deal with matters of moral and religious belief.
The generation that wrote the U.S. Constitution had a lively sense of the tragic consequences Europe endured when, in such matters, Europe's national sovereigns sought to impose uniform regimes upon their people. Their project became a casus belli, fueling bitter conflicts, including searing atrocities on all sides. This roused the opposition of decent conscience. The framers of the Constitution were determined to prevent any repetition of that indecent spectacle among the United States.
Judge Walker, and those like him, are now demanding that, against their often expressed will, the people of the United States abandon the public consequences of their moral and religious beliefs; that they submit to be forced by government to live with laws and practices repugnant to their religious conscience; that they surrender their natural right as parents to see to the moral upbringing of their children, including the moral environment in which they are raised; and abandon as well their duty to God to consent only to laws and government policies that do not contradict His natural law.
These demands offer to reproduce the occasions of war the framers of the Constitution intended to avoid. They are not only unconstitutional, they entirely contradict the statecraft by which, in their Constitution of government, the sovereign people of the United States seek to promote the union and domestic tranquility of their country. Moreover, they directly challenge and overturn the fundamental concept of justice on which the Constitution is based, a concept that requires respect for the laws of nature and nature's God. By what mad logic must we accept the notion that the American people have no overriding interest in making and maintaining laws that respect the moral premises of their claim to sovereignty, self-government and all unalienable rights? (In this regard, see my blog posts "Legalizing homosexual marriage impairs unalienable right" and "Unalienable right, 'homosexual marriage' and the meaning of 'natural law.'"