Tag: Obergefell v. Hodges

The Right Response to Obergefell: Jurisdiction Stripping

 

The other day on the main podcast (episode 265 for those playing along at home), I argued in favor of what I consider to be the most realistic strategy to undo the damage wrought by Obergefell v. Hodges; namely, jurisdiction-stripping legislation.  The proposal generated a fair amount of interest among the Ricochetti, and now I have expanded on the idea over at National Review.

I encourage you to read the whole thing, but here’s the basic idea.  Congress should abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage.  The result would be that states would immediately be free to reinstate laws defining marriage in the traditional manner, if they so wish.  Same-sex marriage advocates would be free to challenge those laws, but they would do so in state court, and the final judicial decision would rest with the Supreme Court of each state.

Can Congress do that? Yes. Under Article III of the Constitution, the appellate jurisdiction of federal courts (including the Supreme Court) is entirely subject to congressional regulation.  In fact, the very existence of every federal court (except the Supreme Court) is a matter of congressional discretion. Over the years, Congress has expanded and contracted federal appellate jurisdiction in various ways.

Obergefell and the Limits of Judicial Supremacy

 

shutterstock_162764102In Obergefell v. Hodges, the Supreme Court used its power of judicial review to legalize gay marriage throughout the nation. In one fell stroke, five Justices short-circuited the democratic process, which was gradually removing barriers to gays, and swept aside the Constitution’s reservation of family-law matters to the states. Even while they may disagree on gay marriage, most Americans believe they must obey Obergefell because the separation of powers gives the Supreme Court the ultimate authority to interpret the Constitution.

Prominent defenders of traditional marriage, however, have gone beyond the usual criticism of a mistaken judicial decision to attack the Supreme Court as an institution. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Mike Huckabee, former governor of Arkansas and GOP presidential candidate. “We must resist and reject judicial tyranny, not retreat.” Fellow candidate and Republican senator Ted Cruz has proposed constitutional amendments not only to overturn Obergefell, which other candidates support, but to subject Supreme Court justices to periodic elections.

While these politicians, I believe, have overreacted, they hit upon an important truth about our Constitution. Contrary to popular belief, Obergefell does not settle the question of gay marriage, because the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.

Slate’s Rising Intolerance on Gay Rights

 

In my recent Defining Ideas column, “Hard Questions on Same-Sex Marriage,” I sought to explore some of the intellectual cross-currents and difficulties in the Supreme Court’s opinion in Obergefell v. Hodges. There were two basic points in the article.  First, I sought to explain the difficulties in finding a constitutional right to gay marriage, even though most of the standard arguments against same-sex-marriage tend to fall flat as a matter of social and political theory. The article was in no sense an effort to rally religious conservatives to stop the powerful political juggernaut that has resulted in a surge in public approval for same-sex-marriage.

The second point was my deep uneasiness that the same-sex-marriage movement is moving sharply from its defense of gay unions towards a massive intolerance of those individuals who, for religious reasons, oppose the practice and wish to conduct their own personal lives and business activities in accordance with their own beliefs — beliefs that I hasten to add are not my own. The recent hysterical screed against my column by Slate’s Mark Joseph Stern, laden as it is with abusive epithets, shows just how rapidly that form of intolerance is taking over the gay rights movement more generally.

A Random Sampling of Progressive Opinion on Religious Liberty

 

SCOTUSLest you think that I was overly alarmist in my earlier post on Obergefell’s threat to religious liberty, consider this.  I wrote a slightly longer version of the piece for City Journal, which was then posted to RealClearPolitics — so it attracted a fair number of eyeballs outside of the conservative bubble.  Here are some of the comments I got:

  • Religion is the problem, not gay marriage. Religion is a multi-billion dollar a year industry that threatens the civil liberties of everyone. Religion is as pervasive as pornography in this country, but much more harmful to our culture.
  • If the institution of marriage is removed from its unnatural cloud of accompanying religious magic . . .  it is a right, like any other. As such it should by law available to ALL citizens. In THIS country at very least.
  • I think it’s always dangerous to defend anything based on religious belief.
  • It’s a “threat to religious liberty” only if you think that people should be free to use their religion as an excuse to screw others.
  • There are so many parallels with the 1960’s civil rights movement it is hard for any rational person to fathom how those on the “pro-religious” freedom side expect history to view their backward cause.

Progressives feel momentum on their side and nothing will get in their way. If new rights can be invented by the judiciary, then old rights — like the free exercise of religion — can be just as easily interpreted into oblivion.

Happy Dependence Day

 

const4In what may well become history’s greatest example of missing the forest for the trees, we Americans have been so busy arguing about current political events and issues — the Supreme Court’s decisions on Obamacare and same-sex marriage, the ongoing negotiations about global trade and Iran’s nuclear program, immigration, taxes, gun ownership, and the Confederate flag — we haven’t noticed that our country has just had a revolution.

If you’re reading this essay, it’s very likely that your side lost.

The key to understanding what’s happened to us lies in grasping that a revolution occurs when a country changes not merely its laws or its leaders, but its operating system.

Should Clergy Continue to Register Marriages for the State?

 

shutterstock_262863614As you may know, nearly all clergy act as marriage agents for their local or state governments. In Connecticut, for example, ordained or licensed clergy may perform marriages as long as they continue in the work of the ministry. The marriage license must be completed by the minister and returned to the city or town clerk. Right next door, Massachusetts clergy themselves must obtain a license to marry before they can fill out valid licenses.

With Obergefell, I know of confessional pastors who are looking hard at whether they should continue this practice. Fr. Jonathan Morris — best known for his appearances on Fox News Channel — had two tweets that sum up the case for this approach.

First, formally splitting their roles in civil and sacred marriage is a witness to the traditional definition of marriage:

Process Matters

 

imagesOne of the differences between the Right and the Left is that the Left is concerned only about outcomes while the Right is concerned about outcomes and process.

When you think about it, all the major conflicts in America’s history have been more about process than the underlying issue. The American colonist’s slogan was not “No Taxation”; it was “No Taxation Without Representation,” which is fundamentally about process. Even when Parliament repealed the Stamp Act, the colonists weren’t satisfied because they had no say in the matter and thought — correctly — that the repeal was just as arbitrary as the original act. Most of the grievances leveled against King George in the Declaration of Independence were about the arbitrary exercise of royal power. The American Revolution was fought over process; the ability for free men to govern themselves. While the underlying moral cause of the Civil War was slavery, the proximate cause was about the process of laws and policies concering slavery that lead to secession.

What is the Constitution of the United States other than a document describing the process by which the people will govern  themselves? When the Supreme Court issues rulings like they did last week, they usurp this most fundamental of all rights. The Left will never understand our concern with process, which they consider to be a minor detail on the road to utopian social justice. What they fail to understand is that someday the arbitrary exercise of power may go against them. By then it will be too late — and a country of the people, by the people, for the people will have perished from the earth.

On Judicial Incoherence

 

In Case of TyrannyThe primary difficulty is in knowing where to start. A consistent run of luck continues to have me in the driver’s seat of an 18-wheeler when news breaks that our philosopher-kings on the Supreme Court have hurled yet another thunder bolt toward the benighted masses for the purpose of jolting us from our fixed creeds and established truths, directing us to trade in the accumulated wisdom of human experience for the latest epiphany of a gaggle of lawyers.

I was somewhere between Memphis and Little Rock, navigating potholes that Evel Knievel would have used ramps to cross, when I learned that Chief Justice Roberts’ restless mind had pondered the words, “established by the State,” and discovered that they actually mean, “not established by the State.” “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” explained Roberts. Uh huh. Well, yes, and Congress passed the National Prohibition Act of 1919 to ban the sale of alcoholic beverages, not to midwife organized crime, but it is not the legal prerogative of the Supreme Court to protect the legislature from the effects of its own laws.

Besides, if the Chief Justice wanted to deduce the intent of the Affordable Care Act in this regard, he had merely to consult the words of its architect, Jonathan Gruber, who said in 2012, “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. …I hope that’s a blatant enough political reality that states will get their act together…” But robed demigods are not interested in the intent or the plain meaning of the words, “established by the state.” Instead, Roberts’ focus was fixed on salvaging what Mark Steyn calls the “push-me-pull-you” monstrosity of Obamacare rather than his solemn duty to determine the constitutionality of the law as written. So he engaged in intellectual high jinks, literally rewriting the law (as he previously did when changing “penalty” to “tax”), and performed such mental gymnastics as required to affirm for the second time your fundamental right to be subservient to the federal government in matters effecting your health and, indeed, your life and death. Thus passeth another late June morning in post-constitutional America.

The Libertarian Podcast: The Supreme Court and Gay Marriage

 

Still hungry for more razor-sharp constitutional analysis after yesterday’s Law TalkYou’re in luck. We’ve got a double-shot this week, as Professor Epstein also weighs in on the Supreme Court’s gay marriage decision in Obergefell v. Hodges in the new episode of The Libertarian. And the conversation here is a little different — for instance, Richard discusses whether Chief Justice Roberts has any discernible judicial philosophy and whether Rand Paul’s suggestion that we get government out of marriage altogether is practical. It’s all available by listening in below or by subscribing to The Libertarian via iTunes or your favorite podcasting app.

The Hidden Message of Same-Sex Marriage

 

shutterstock_219219871The four dissenters in Obergefell v. Hodges lucidly expressed the profound offense against constitutional law and representative democracy the ruling represents. In short, five lawyers, accountable to no one, chose to legislate on a profoundly consequential matter that the people were just beginning to address through democratic means. As Chief Justice Roberts wrote: “Who do we think we are?” If justices cannot resist the urge to legislate, let’s drop the pretense that constitutional law is guided by neutral principles and at least give the people the option to vote justices in (and out).

That the court has struck a blow for gay rights is true enough (and treating homosexuals with respect is long overdue). Unfortunately, the claim that this ruling also strengthens marriage is almost certainly false. To understand why is also to answer the question so often pressed as a taunt by gay marriage supporters: How can extending marriage to gays possibly affect your marriage? The answer lies in the hidden message.

The road to gay marriage began with feminism. Feminists argued that there were no important differences between the sexes. Thus, mothering and fathering were interchangeable. The word ‘parent’ became a verb. If mothers and fathers bring nothing unique or complementary to their roles, then it logically follows that two mothers or two fathers should be just as good. Talk of three or more parents misses the mark. The relevant number is one. If fathers are no different from mothers, then single women needn’t pause before embarking on “parenthood” solo – and they aren’t.

Scalia’s Dissent in Lawrence vs Texas

 

Justice Antonin Scalia’s dissent in Lawrence v. Texas was prescient in its analysis of where we were headed in a post-Lawrence world. Likewise, the reaction to last Friday’s Obergefell decision has included warnings from both the dissenters and numerous commentators that the fallout from the case could mean serious legal challenges to religious institutions and/or the necessary discovery of a constitutional right to polygamy or prostitution.

Naturally, progressives scoff (at least on the record) at such suggestions, even as we begin to see a few commentaries pop-up that make those very arguments.

To most on the Left, these are the desperate ramblings of scare-mongers who are trying to cling to the most absurd arguments still available to them in this rapidly changing world. “Pay these claims no mind,” they say.  “This is just slippery-slope nonsense.” They usually then tack on a strawman about how conservatives think people will start marrying their dogs or some such thing.

The Marriage Immigrants

 

shutterstock_784954512When immigrants move to a country of their own free will, they have an obligation to adapt to their adopted country’s values. This doesn’t mean abandoning their old culture entirely or pretending that the new one is beyond reproach, but at the very least it means giving up aspects of it that are incompatible with their new one. After all, if you think your adopted culture is worth immigrating to, you should want to try to keep and cherish it basically as you found it.

As of this Friday, gay people across the nation are now immigrants to marriage culture. Some of them have been here for a while — I personally know gay couples who’ve been legally married five times longer than I — while most are freshly off the ship. Like all voluntary immigrant populations, they have a positive duty: to assimilate to the culture they chose to adopt and to do so with enthusiasm.

That probably means not only being as married as your straight peers, but more so. In practical terms, that means being more monogamous than straight couples, less prone to divorce, and even more interested in your children’s (should you have any) welfare. And if you’re so inclined, think what a powerful message it would be for marriage if you said that sex only belongs within marriage, even for you.

Silver Lining to the Rainbow Victory?

 

Illinoisreview.typepad.comPointing out that the Supreme Court found the right to gay marriage in Section 1 of the 14th Amendment, Bob Owens of Baring Arms seems to have found a silver lining in last Friday’s Obergefell decision. The Court wrote:

“The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

There are currently 36 states with “shall issue” firearm license schemes; i.e., one where anyone who meets certain objective criteria must be issued a license. By using the same rationale as the Court used on Friday, those holding valid concealed carry permits must be granted the same protection in places like D.C., Maryland, New Jersey and New York. After all, while the Court had to strain to find its rationale to overthrow 6,000 years of human history, the Second Amendment is right out there for all to see.

The Court’s Assault on Democracy and States’ Rights

 

One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.

The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism.  The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

The Wrong Side of Morality

 

Many of my friends are very happy about Friday’s US Supreme Court decision. While I have mixed feelings, I realize that many of them are driven by great love and respect for other people, their dignity, their equality, and their love. And perhaps they’re right to celebrate the Supreme Court’s expansion of the definition of marriage.

A small minority of them, however, undermine their claim to be driven by love and respect when they lash out in hatred, anger, and derisive mockery at Supreme Court justices, or at others who do not share their views. If you write or like a post that calls Justice Thomas a highly unpleasant expletive, for example, the emotion driving you does not seem to be love, and the values guiding you do not seem to be respect or tolerance.

Why We Lost; What We Lost

 

ConstitutionYesterday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public relations campaign.

In a purely pragmatic sense, it’s difficult not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.

In no particular order, it:

Marriage 2.0

 

“YouTube and Google are proud to celebrate marriage equality” proclaimed the mighty Google search page yesterday. At the rate things are going, June 26 will wind up being a national holiday in the future.

Yesterday’s decision didn’t just extend the legal rights and privileges of marriage to same-sex partners; civil unions began that process a while ago. Yesterday redefined state-sanctioned marriage itself. It’s more than marriage “equality.” This is marriage expansion.

SCOTUS and the Age of the Imperial Judiciary

 

In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process?  Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.

Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.

Mr. Justice Scalia Dissents

 

scaliaMr. Justice Scalia, dissenting:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

SCOTUS Mandates Same Sex Marriage Nationally (UPDATED)

 

shutterstock_141934102From the the syllabus in Obergefell v. Hodges:

The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

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