Posted on 10/12/2015 6:10:14 AM PDT by wagglebee
The decision of the Supreme Court in Obergefell v Hodges effectively legalised same-sex marriage throughout the United States.
Or did it?
A group of 60 distinguished scholars, mostly lawyers, insist that it does not. They have thrown down the gauntlet, arguing that the Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the executive and legislative branches of government. “And they are certainly not supreme over the Constitution.”
Behind this audacious challenge is Princeton Professor Robert P. George, an eminent academic and a seasoned campaigner in the battle to stop same-sex marriage.
For village pump lawyers, this might sound strange, even arrogant. Surely, in all legal disputes, the Supreme Court has the final word? Not necessarily – although it requires a finely calibrated legal mind to understand the strength and boundaries of the issues involved.
Basically the scholars are endorsing a theory of constitutional interpretation called “departmentalism”. Each branch can interpret the Constitution for the purposes of its own functioning. For instance, the American President takes an oath to "preserve, protect and defend the Constitution of the United States” not to "preserve, protect and defend the Constitution as interpreted by the Supreme Court." The President is allowed some freedom of action in interpreting the Constitution as well.
The best example of this in practice is President Lincoln. He ignored the appalling Dred Scott decision handed down by the Supreme Court in 1857 which declared that blacks were not and could not be citizens of the United States and therefore had no legal protection. He issued passports to blacks and banned slavery in western districts, defying the Court’s interpretation of the Constitution.
If Lincoln was right, there is some scope for the next US President to ignore Obergefell v Hodges as a precedent to be invoked in every similar case throughout the country. Instead, he could say that the Court had spoken authoritatively only for the parties involved in that case alone.
So there could be a constitutional way to quarantine the Court’s decision – if the executive were up to the challenge. That is probably why the statement is linked to a Super PAC, the Campaign for American Principles, which is raising funds to fight for life, marriage and religious liberty. It claims that it will offer "the best arguments, a platform to act, [and] the political muscle to make a difference".
Here is the fascinating, hopeful, and eminently controversial scholars’ statement.
******
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships.
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.
The four dissenting justices are right to reject the majority opinion in unsparing terms.
Justice Scalia refers to it as “a naked judicial claim to legislative….power; a claim fundamentally at odds with our system of government.”
Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action.
Justice Alito calls attention to the well-established doctrine 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 that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”
Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.
If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:
First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care.
Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugal union—the covenantal partnership of one man and one woman—will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.
Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.
Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.
In 1788, James Madison wrote, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
In 1857, 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.” If a 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.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
Therefore:
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.
We call on all federal and state officeholders:
We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Our position is summed up in Lincoln’s First Inaugural Address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.
Michael Cook is editor of MercatorNet.
The best example of this in practice is President Lincoln. He ignored the appalling Dred Scott decision handed down by the Supreme Court in 1857 which declared that blacks were not and could not be citizens of the United States and therefore had no legal protection. He issued passports to blacks and banned slavery in western districts, defying the Court’s interpretation of the Constitution.
This is EXACTLY what needs to happen.
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I would not like to see the current president ignore the court’s recent opinion on the second amendment.
“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.”
— President Abraham Lincoln, First Inaugural Address
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
— Thomas Jefferson, Letter to Abigail Adams, September 11, 1804
After Obergefell: Dignity for the Second Amendment
Marc Greendorfer
Tri Valley Law; Zachor Legal Institute
August 28, 2015
Abstract:
On June 26, 2015, a sharply divided United States Supreme Court issued its ruling in Obergefell v. Hodges, commonly known as the “same sex marriage” cases. Justice Anthony Kennedy, writing the majority opinion, introduced the rationale for striking down state laws that did not recognize a right to same sex marriage: a theretofore unrecognized and unenumerated “dignity” right that took legal precedence over longstanding principles of federalism and the bedrock American legal tradition of allowing states to experiment with solutions to a wide range of social issues.
Justice Kennedy didn’t explicitly consign federalism to the ash heap of history, but to put the Court’s ruling into effect (that is, to force each of the 50 states to recognize a right to same sex marriage), the basic premise of federalism - that each state has the right to make its own laws, other than to the extent there is federal preemption for a limited universe of topics - has to be disemboweled. This description of the fate of federalism is particularly true in light of the fact that prior to Obergefell, there was no question that the regulation of marriage was a matter strictly consigned to state control.
What does Obergefell mean for other state and local laws that purport to regulate other matters that have been found to be protected by the Constitution? In particular, can any state laws that regulate the right to keep and bear arms, a right protected by the Second Amendment, survive in a post-Obergefell world?
This paper examines the Obergefell opinion (and the dissenting opinions) to argue that Justice Kennedy’s opinion results in the effective preemption of all state and local laws that affect fundamental rights, including the individual right to keep and bear arms.
(Note: This paper is an expansion of the amicus brief the author submitted in the Obergefell v. Hodges Supreme Court case, available at http://ssrn.com/abstract=2589220. The amicus brief has been downloaded from SSRN approximately 290 times as of September 2015.)
Number of Pages in PDF File: 21
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652536
What the author wrote in a blog that drew my attention to this paper:
>>
What I argued is the following-if the court gives this kind of protection to newly created rights that are not enumerated in the Constitution, how would it ever be able to uphold any state infringement of existing fundamental rights that are enumerated in the Constitution, like the Second Amendments protection of the right to keep and bear arms? Justice Kennedys Obergefell opinion did exactly as I expected in my amicus brief.
.... Justice Kennedys opinion must mean, as a matter of 14th Amendment precedent, that all fundamental rights, including the right to keep and bear arms, are now immune from state and local regulation. ...
<<
Every justice who voted for this ruling should be impeached for seeking to overturn the Tenth Amendment.
“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
— Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819
They called the SC decision an EDICT .... which can be received as legitimate if from a sovereign entity which the SC is not
It is something we should print out and keep in the bathroom to study
Well ... that's MY quiet place library, anyway.
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”
— Thomas Jefferson, Letter to William Jarvis, Sept. 28, 1820
Lots of folks these days love to hate Jefferson. But concerning many important things, he was quite prescient.
And the danger posed by the judiciary was certainly among them.
Bflr
We're already seeing the prosecution persecution of Christian individuals who do not bow to the US Supreme Court's unConstitutional act which elevated homosexual marriage to that of equality of heterosexual marriage.
We've already seen that in the Kim Davis (KY County Clerk) and in the "Sweet Cakes by Melissa" case as well. These two are but two examples.
There is also a case in a Nevada court where an Elvis based wedding chapel is being sued/was sued for not performing homosexual marriages --- and that's not the only chapel to do so.
We also have cases pursuing legal action where churches may lose their insurance coverage for not marrying homosexuals. Many insurance companies are either dropping coverage, or telling churches that they will not pay for any claims as a result of being sued by a homosexual couple for refusing to marry them.
Again, Christian prosecution PERSECUTION is happening already, and it's only going to get worse until Christians stand up en masse and REFUSE to follow the US Supreme Courts unConstitutional ruling.
That, and elect a President who takes a stand against the USSC.
The article at the top of this thread is and EXCELLENT read. Thanks for posting.
No decree contrary to the natural law can be binding on anyone.
That’s a legal consensus. The debate is over. Anyone questioning these facts is a Constitution Denier.
I'm not sure what you're trying to say.
Are you suggesting that the debate over Obergfell is done and it's "settled" law?
Other way around. 60 Legal Scholars saying 0bergefell is not binding is definitive. The debate is over. 0bergefell is not binding because experts said so.
Just like Global Warming.
related thread: http://www.freerepublic.com/focus/news/3347628/posts?page=1
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