Monday, May 19, 2008

A Breath of Fresh Air

After all the worried and anxious thoughts I've had about the likelihood of gay marriage becoming the law of the land, it was truly a breath of fresh air today to read this.

No, of course I'm not trying to make some kind of invalid comparison between kiddie porn and gay marriage (poor Jesse Dirkhising nonwithstanding). But it's heartening to see that our Supreme Court of the United States of America is capable of such bracing common sense. From the New York Times article:

The Supreme Court on Monday upheld a 2003 federal law aimed at child pornography, concluding in a 7-to-2 opinion that a federal appeals court was wrong to find the law unconstitutionally vague. (...)

The ruling scathingly rejected contentions that the 2003 legislation was so broadly written that it could make it a crime to share or even describe depictions of children in explicit sexual situations, even if the depictions are inaccurate, the children do not really exist and the intention is innocent.

Invalidation of a law because it is thought to be too broad is “strong medicine” that is not to be “casually employed,” Justice Scalia wrote, citing earlier Supreme Court rulings and declaring that the United States Court of Appeals for the 11th Circuit had employed the strong medicine too casually in the case at hand. (...)

Justice Scalia’s opinion not only swept aside the defendant’s contention that the law as written was too vague but said it made no difference whether the pornography was offered for sale or was promoted as being free. Consider a drug case, he suggested: “It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free.”

According to the article, only Ruth Bader Ginsburg and David Souter disagreed. Writing the dissenting opinion, Justice Souter seemed terribly concerned that people who created computer-generated, "fake" kiddie porn could be prosecuted under the law. Real people who live in the civilized world aren't too concerned about that, of course; we find fake kiddie porn a pretty horrific idea, since it only encourages the pedophiles out there to continue with their sick fantasies. But technically I don't see any problem with the law--would a drug dealer be in danger from our current drug laws if he sold bags of flour as cocaine? Maybe--but his biggest danger would come from the disappointed customers, making it rather unlikely the law would ever have to get involved at all, so I think Justice Souter's worries are unfounded.

So why, exactly, is this encouraging?

It means that the majority of the current Supreme Court Justices haven't completely abandoned the notion of common sense. And that's good news for all of us, considering.

It makes it at least possible that if and when the gay marriage nonsense winds up being on the dockets at SCOTUS, the justices we have now will be capable of looking seriously at the merits of the case, whatever it might be, and then examine the Constitution and discover that just as the right to free speech doesn't contain any emanating penumbras protecting the manufacturers and distributors of child pornography, so too does the Constitution completely fail to give either separately to the States or totally to the Nation the power to decide that circles are squares, that red is actually green, or that two men or two women can be married.

I'm hoping for a 7-2 split, like this one. Justice Souter or Justice Ginsburg can write a heartfelt dissenting opinion telling the rest of us how disappointed they were that the Court failed to shake the Constitution and hold it up to the light in the hopes of seeing yet another new right out itself from amid the clear and settled language of what they keep insisting is a living document, but we would have the quiet satisfaction of knowing that when it really mattered, common sense prevailed over idiotic ideology.

We can only hope.

1 comment:

Alexandra said...

I was thinking the same...that the Ca. ruling will probably make its way to the SCOTUS .