Posted on 07/09/2015 2:07:13 AM PDT by markomalley
Justice Kennedy’s reasoning in Obergefell is fully encapsulated by his first line: Americans have a constitutional right “to define and express their identity.” Of course, this right is contingent on their defining only those things to which the Supreme Court is willing to ascribe “dignity,” in prose so purple it must be read with tinted glasses. On its face, the reasoning is as risible as it is contemptible. In this new, metastasized version of substantive due process, the business of adjudicating rights no longer demands analysis, only ascription.
The dissents are among the harshest, most dismissive, and most suggestive in the history of the Supreme Court. Justice Scalia opines that the Court has “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He says, “If I ever joined [such] an opinion . . . I would hide my head in a bag.” Alas, as self-governing citizens of a constitutional republic, we cannot get off so easily. We can neither run nor hide. Aphoristic reasoning of the sort Justice Kennedy has produced is owed nothing by the citizens it purports to control. We must offer resistance to a decision so patently ungrounded in the Constitution that the dissenters themselves suggest it is owed no deference. The Supreme Court cannot command our obedience when it has not earned our respect. As Daniel Webster said, “God grants liberty only to those who love it, and are always ready to guard and defend it.”
Scalia refers to the majority opinion as nothing more than “a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government.” It is “couched in a style that is as pretentious as its content is egotistic,” betraying the “pride” that “goeth before a fall,” as the Court moves “one step closer to being reminded of [its] impotence.” As Scalia avers, Federalist No. 78 argues that the Court has “neither Force nor Will, but merely judgment.” When a judgment is as profoundly silly as the present one, it is not an option but a constitutional imperative for the people and the officials they have elected, who pledge to uphold not the Court, but the Constitution, to offer their fullest measure of devotion to that document.
Justice Alito notes that had the Court followed its own precedents, it would have found that the “liberty” guaranteed by the due process clause protects only those rights “‘that are deeply rooted in this Nation’s history and tradition.’ . . . And it is beyond dispute that the right to same-sex marriage is not among those rights.” The new “right” is a product of judicial fancy, pure and simple. Furthermore, in substituting its judgment for the judgments of the state legislatures, the Court wrongly asserts that marriage is recognized by government for the sake of “the happiness of persons who choose to marry.” But marriage has been recognized and promoted by government for the sake of children, who are the natural result of “the one thing that only an opposite-sex couple can do.” And we should add to Alito’s observation what is often ignored or denied: Although not all natural couples choose to have children, or are capable of doing so, this does not alter by one iota society’s compelling interest in holding out as normative, and particularly desirable, the only type of sexual relationship that is capable of doing what is required for the perpetuation of society. Further, there is reason to believe, and common sense would suggest, that children fare best when raised by two married parents who model distinctively male and female traits and virtues.
Alito is also concerned with downstream consequences. In addition to being a usurpation, the majority decision will be used to “vilify Americans who are unwilling to assent to the new orthodoxy.” Alito cries out for political action to check rogue courts, which are afflicted by the “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” More than anything else, the decision shows that “decades of attempts to restrain this Court’s abuse of its authority have failed.”
Justice Thomas notes that the decision “is at odds not only with the Constitution, but with the principles upon which our Nation was built.” The doctrine on which it is based, substantive due process, “exalts judges” — and a bare majority of judges at that — “at the expense of the People from whom they derive their authority.” Even if the doctrine were not erroneous to begin with, maintaining the age-old definition of marriage does not deprive anyone of liberty — which, constitutionally, refers to freedom from physical restraint. And even if the word liberty were erroneously interpreted more broadly than that, it would refer only to freedom from governmental action — not a right to it. By twisting the constitutional and philosophical meanings of liberty, the majority undermines the central moral and political truths of the American Founding: the right of the people to consent, or not consent, to their government and the laws it makes. Like Alito, Thomas is concerned about what comes next. The Court has undermined the right to religious liberty, which is threatened in myriad ways by the majority’s intensely anti-religious moralism masquerading as jurisprudence.
Even Chief Justice Roberts — as consumed as he is with maintaining respect for the Supreme Court and its judgments — did what was unprecedented for him, namely, reading a summary of his reasons from the bench. In his full judgment, he notes that the Court has taken the “extraordinary” step of ordering every state to license and recognize that which is contrary to what has persisted “in every culture throughout human history.” Yet, the “Constitution leaves no doubt” that such a step is inappropriate. By taking it, the Court turns the United States into a government of men rather than laws, based on “an act of will, not legal judgment.” The “pretentious” majority even “feels compelled to sully those on the other side of the debate” in an “entirely gratuitous” manner. They are characterized as people who “demean,” “stigmatize,” “disparage,” “disrespect,” and “subordinate” “their gay and lesbian neighbors.” In addition to the assault on religious belief and political liberty that these words portend, the Court — asserting no limiting principle to its jurisprudence of dignity — has made further bitter conflict inevitable, over a whole host of creative individual and familial claims.
Previous marriage cases — including Loving v. Virginia, which struck down a state ban on interracial marriage — “require a State to justify barriers to marriage as that institution has always been understood.” By contrast with laws banning contraception or sodomy, laws that maintain the timeless understanding of marriage “involve no government intrusion. They create no crime and impose no punishment.” The Chief Justice reminds the Court of the need for restraint in “administering the strong medicine of substantive due process” — a lesson first taught by Dred Scott. Most of the majority opinion, he suggests, does not even have “the virtue of candor.” And he asks — somewhere between plaintively and angrily — “Just who do we think we are?”
Make no mistake: The words of the dissenters are weapons thrown our way by defecting soldiers. If we don’t seize them to fight, we will show we are now incapable, and unworthy, of self-government. In seizing them, we will be in good company. Responding to Dred Scott, Abraham Lincoln said: “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” And what Lincoln said of Dred Scott applies precisely to Obergefell: If the decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” Lincoln would find Obergefell, as he found Dred Scott, “wanting in all these claims to the public confidence.” It is therefore “not factious” to claim it has not settled the law.
It would be best if the coequal branches of government at the federal level checked this astounding judicial usurpation.
Admittedly, it would be best if the coequal branches of government at the federal level checked this astounding judicial usurpation, through the exercise of their constitutional prerogatives. Executive refusal to enforce an unconstitutional judgment would be the most obvious place to start, but cannot be expected in the present instance, both because of the current occupant of the White House, and because what the Court has done is usurp legitimate state, rather than federal, authority. But this power of refusal, and the constitutional authority of Congress to limit the Court’s appellate jurisdiction and to impeach judges, are each incidents of a sober departmentalism and among possible remedies, in the long run, for the problem to which the dissenters point. Members of Congress who care about the Constitution should at least be discussing these remedies. And they should also be encouraging state and local officials to act, since this is really their ballgame.
The risks of state action are as obvious as they are overblown. An exercise of legitimate constitutional authority at the state level would invite the tired, insincere, or ill-considered claim that any assertion of “states’ rights” is necessarily tainted by history. But constitutionalists are with Abraham Lincoln, not Orval Faubus. They do not reject, but embrace, the Constitution and its underlying claim of equal natural rights, including the right of the people to engage in self-government — not to mention to defend the English language against those who would conscript it for political purposes. They must remember just how flimsy is the solitary arrow in the quiver of Obergefell apologists: The Constitution is what the Supreme Court says it is. Such an arrow can be deflected by even the most lightly armed.
We should note that many of the measures advocated by opponents of Obergefell are doomed to irrelevance. Politicians who call for more or stronger laws to protect religious liberty at the state or federal level are on a fool’s errand. Any laws that purport to restore or guarantee such liberty are likely to be narrowed or eliminated at the first pressure from special-interest groups, or overturned by courts — which, we should recall, are the problem. Some scholars advise the appointment of justices who reject judicial usurpation of politics. But in so doing they rely on a bromide that, as Justice Alito reminds us, has proved an epic failure in slowing the growth of this cancer on our body politic.
So what must the states and their subsidiary units — governors, legislators, county officers — do to fire a shot across the bow of judicial supremacy? It’s a shot that should have been fired years ago, at the federal level. But here we stand. State and local officials, with the support of the people as a body and brave individuals as necessary, must now play the hand they have been dealt and pledge: No voluntary compliance — whether by states, their officers, or ordinary citizens — coupled with determined resistance. Specifically, the following measures are now necessary for all constitutional officeholders, with prudential adjustments as local circumstances dictate.
First, they must call out the Supreme Court as illegitimate insofar as it wishes to impose the will it has expressed in Obergefell. They do not have to get too creative to do this — quoting the dissents, and cribbing arguments from them, would be an excellent start. They must calmly but firmly demand resignations, suggest impeachments, and advise their federal colleagues to act against the Court, using the full constitutional arsenal available to them. In doing this, they would be taking a page out of President Obama’s playbook, when he very publicly called the Supreme Court to account in his 2010 State of the Union Address.
Second, they should not license same-sex “marriage” without further specific guidance from geographically and constitutionally relevant courts. After all, a decision such as Obergefell is hardly self-enforcing — it reverses the judgment of the Court of Appeals for the Sixth Circuit in 16 consolidated cases. To these cases, no one will offer resistance.
Third, they should pledge — and mean — to appeal any further decision that aims to force compliance with Obergefell, to the maximum extent allowable by law.
Fourth, they should pledge to interpret any decision in a particular case as narrowly as possible — as applying only to the parties therein rather than as setting a precedent for future cases — to the maximum extent allowable by law.
Fifth, they should make clear that the meaning of “the maximum extent allowable by law” might itself be a matter of reasonable dispute.
Sixth, they must pledge to protect state and local officials from legal penalty, civil damages, or injunctive relief for refusing, on reasonable, constitutionally protected grounds, to issue marriage licenses.
Seventh, they must pledge state resources — including law-enforcement resources — to interfere, when necessary, with unreasonable civil, criminal, injunctive, or other court-ordered sanctions pursuant to Obergefell. As John Adams exhorted a decade before the American Revolution, liberty cannot be won, or maintained, unless many individuals and groups “join their harmony in the same delightful concert.”
In these times that try men’s souls, we must not shrink, but must pledge allegiance again to our flag, and to the Republic for which it stands — never allowing ourselves to think it symbolizes five justices of the Supreme Court. Let us stipulate that many of those who now reject Obergefell have much of which to repent, for what they have done and left undone to save the culture whose retreat now seems to make them strangers in a strange land. They might have come to the field late, but this does not mean they can stand down — their opponents will not allow it. Their choice is to join a battle they did not seek, or simply defer it, to their disadvantage. To these Americans of faith and good will, a strategic retreat from politics — even to strengthen in themselves, their families, and their friends what they understand to be the truth — would be imprudent, if not self-indulgent. They will find themselves surrounded even more quickly — their universe shrinking with every political deed they now leave undone.
He certainly is incompetent. He has engendered only contempt for it!
I've run a couple of times on that exact platform. Been pretty much ignored though, even around here.
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As legislative proposals, those are decent recommendations.
There needs to be a master list of those kind of suggestions as well as a list of suggestions for civil disobedience that make sense in accomplishing the objective of protecting religious freedom and turning back the obergefell decision.
I keep saying that if the purpose of the 14th was to grant rights to minority classes for all things, then what was the point of the 15th and the 19th amendments? Of course the 14th gave no such right which is why the constitution had to be amended to force states that would not change their laws, to abide by the new law of the land. Thus if people who wanted gay marriage they would have had to go the long hard road of getting a super majority of states to approve of it, then if that happened they would have had to put it into the constitution to force any hold out states to make it legal. But no, 5 justices found a right that did not exist.
That cheers me up! Of course, morally corrupt people are quite happy with morally corrupt judges. Nonetheless, the fight must go on.
Absolutely.
That people can “define and express their identity” however they want in no way means that there exists a right to legal recognition of any grouping of persons assembled for whatever reason.
If a group of persons wishes to form a commercial venture they must comply the laws enacted by the elected legislature, laws which govern corporations. If a group of persons wishes to form a personal venture they must comply with the laws enacted by the elected legislature, laws which govern marriages. This is the process defined by law.
There is a process defined in law for changing law.
Throughout history in every major society marriage has been between man and woman, or man and women. Now comes a novel definition.
The advocates of this novel definition are free to avail themselves of the process prescribed by law to change the laws to incorporate this novel description. No advocate of this novel definition has followed the laws enacted by the elected legislature to have this novel definition incorporated into the laws, instead they have claimed that they have been deprived of a right.
Again, there is no right to legal recognition of any grouping of persons assembled for whatever purpose. This is no infringement upon any persons rights of association or their conjugal rights, their ability to “define and express their identity”. The process defined in law for changing law is available to all and no person or group has been denied the process for changing law.
To aid the advocates of the novel definition to obtain what they could not obtain legislatively, judges have imposed upon society this novel definition.
To protect against judicial novelties and to affirm the universal understanding of “marriage” citizens in several states have followed the legal procedures required in that State, procedures enacted by the elected legislature, to have placed before the voters a proposed amendment to the State Constitution. To have such a proposed amendment placed on the ballot is no small undertaking, typically requiring a large number of signatures collected in each district. The proposed amendment must then be adopted by the voters, typically with a requirement that 60% or more voters must approve for the amendment to be adopted.
There is nothing stopping advocates of this novel definition from doing likewise so that their novel definition is incorporated into the law.
Judges are not Legislators. The Supreme Court is not an unelected super-legislature whose edicts are absolute. They are not kings.
For judges to abuse the power of their office, to exercise that power beyond the extent of their authority, to impose upon society a novel definition so to mold society to their personal views is abject tyranny.
Opinions regarding the definition are immaterial, this is a question of rule of law and directly concerns every Person and State. The opinion of these judges can and must be ignored by States. States must protect their citizens and their administrators from this tyranny, by force if necessary. Lawlessness unchecked will grow and devour all.
The advocates of this novel definition are free to avail themselves of the process prescribed by law to change the laws to incorporate this novel description.
There is no right to violate the laws of nature and nature's God. Any laws that attempt it are null and void from the get-go.
This truth is the essence of "the rule of law and not of men." In other words, the foundation of of American republican self-government.
The states need to invoke the 10th Ammendment but they just are not doing it. They are afraid to lose Federal funds. So look for gay marriage in all 57 states.
Impeachment and follow on trials of judges were hardly necessary before the 17th Amendment. Checks and balances worked. They haven't since the 17th.
No impeachments of either judges or high Obama officials will happen because it isn't in the personal, electoral interest of individual senators. Say “impeachment,” and a world of hurt will fall on the errant senator.
The only worthwhile amendments are structural, like the 17th itself. Like the people, states are members of our constitutional republic and MUST have a seat at the legislative table.
How? By what means? The 17th Amendment denied them their legitimate place at the legislative table.
Return the states to the senate and the states will have the mechanism to protect their rights every day.
Article V.
The 10th Amendment is the mechanism states have to ignore unconstitutional laws and go their own way. An Article V convention is unnecessary and very dangerous in the current atmosphere of the USA.
We don’t need more amendments to the Constitution for the Supreme Court to ignore, misinterpret or overrule.
While I agree with you wholeheartedly, by the time the 17th Amendment is repealed, there will be no republic left. It is also questionable if it can be repealed. Many people have fallen for the mobocracy deception and think they control the legislators to get whatever they want while the exact opposite is true.
I fear there is no way to restore decency without first destroying indecency. If we tuck our tails because we fear the word “impeachment” and lack conviction to remove tyrannical judges, then I would suggest that moral decent America is done and good riddance. The sooner the fascist state collapses and is destroyed, the better.
Correct!! I wouldn't trust the same citizens that put an Obama office with any decisions of importance. They won't get it until they lose everything.
If just doing the right, moral and virtuous “thing” could be relied upon, the Framers would have set up a simple democratic system. James Madison spoke at length on this subject. All agreed that men could not be trusted to be angels.
Instead they created a very complex system of interacting checks, balances, and most importantly division of power. The first and foremost division was the vertical separation of powers between the states and the government they created. Leaving the states out of a system that acts on them makes as much sense as removing the people from the system . . . no sense at all! The states would have never ratified the constitution had they not been represented in congress.
Repeal of the 17th isn't just a “nice thing to have,” it is essential that both the people and states participate in a government that acts upon them.
Not the New Deal, Great Society, Obama, nor dozens of horrible supreme court decisions could have happened if the states were still in the senate.
The 17th allowed all power to swirl into DC. It is now flowing like a river to the executive and judicial branches. If power is not once again diffused across the states, all effective authority will soon reside in the president. Elections will end up a pro-forma approval of an El Presidente.
Our institutions no longer serve their constitutional purposes. The question is: how can they be restored?
Article V before we can't.
We have state governments for a reason. Regardless of what today’s media would have you believe, state representatives are not elected state paper-shufflers or federal mandates. State governments share power with the federal government as equal partners.
I would urge you to educate yourself more on the concept of nullification which is what the 10th amendment is. I think you have wedded yourself to this Article V deal to the point that you can’t recognize a more simple remedy which is already in place.
Your chances of being hit in a drone strike are better than the chance that an Article V convention will ever convene much less effect new amendments that ever get ratified.
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