Tag: Supreme Court

Do Women Deserve the Highest Standards of Medical Care? Not If You Ask Planned Parenthood.

By Greg Scott

Greg Scott (Twitter: @GScottSays) is Director of Media for The Heritage Foundation. Greg previously served as VP of Communications at Alliance Defending Freedom and for 10 years as an active duty Marine, most recently as a Public Affairs Officer at Marine Corps Air Station Miramar.

| November 17, 2015

“At Planned Parenthood, we work every day to make sure women receive the high quality health care they need in a safe, respectful environment — including abortion care. Ensuring the health and safety of our patients is central to our mission and fundamental to every person who works at Planned Parenthood.”

So said one Planned Parenthood executive in a cut-and-paste comment last year, the kind you’ll see – nearly or perfectly verbatim – from the abortion giant’s various affiliates across the country. Indeed, another affiliate (after parroting the exact quote above) boasts of its “rigorous medical standards and guidelines” and “rigorous standards and training for staff as well as emergency plans in place, because women’s safety is our first priority.”

Admirable aspirations, signifying a commitment to patient care that transcends all other concerns and animates the very soul of the organization, right? Hardly. This is Planned Parenthood. And the mask slips again.

The Common Law in the Supreme Court

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| November 10, 2015

Much of the Supreme Court’s work is devoted to interpreting statutes and regulations generated by the modern regulatory state. Increasingly, the common law tradition seems to be of little relevance to resolving the great disputes of our time. In my view, relegating common law principles to the back-bench constitutes a major source of confusion in the Supreme Court’s constitutional jurisprudence. The reason is that modern statutory law is heavily parasitic on the common law. A clear understanding of the uses and limits of common law principles is often the only way to see to the bottom of the well in many Supreme Court disputes.

The importance of common law is illustrated by Spokeo Inc. v. Robins, which was just argued before the Supreme Court. In Spokeo, the plaintiff sought to bring a class action suit on behalf of all individuals who had been injured by inaccurate reporting under the Fair Credit Reporting Act (FCRA), which attaches a fine between $100 and $1,000 for each offense. In the particular case, the plaintiff Thomas Robins had alleged that the defendant’s credit report had misstated the plaintiffs’ marital status, income, and educational levels in ways that made it more difficult for him to gain employment. The District Court held that the plaintiff did not have standing under Article III of the Constitution to maintain that claim on the ground that he did not allege that he had suffered “any actual or imminent harm” that could support the case. The Ninth Circuit found that such injury did exist, and the matter should be allowed to go forward. The Supreme Court took the case to address the following issue:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

The Libertarian Podcast, with Richard Epstein: “One Man, One Vote”

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| October 14, 2015

For more than 50 years, redistricting exercises have been guided by the principle of “One Man, One Vote,” the notion that legislative districts must be roughly equal in population. Now, however, the Supreme Court is being called upon to clarify that standard. Is it an equal population of residents? An equal population of eligible voters? Should non-citizens or children count? Are some voters having their influence inappropriately diluted relative to people in districts with high levels of ineligible voters? We tackle the history of this controversy and the newest developments in this week’s edition of The Libertarian, which you can listen to below or by subscribing to the show via iTunes.

Supreme Court Cases to Watch This Month

By John Yoo

John Yoo is professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department of President George W. Bush. He also served as a law clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas of the U.S. Supreme Court, and as general counsel of the U.S. Senate Judiciary… [more]

| October 7, 2015

This first Monday in October raises several cases that might turn the Supreme Court 180 degrees from the last term. If 2014-15 was an unmitigated disaster for conservatives, with Court decisions overturning gay marriage bans in the states and upholding Obamacare’s tax subsidies, 2015-16 presents cases that may bring conservative victories.

These are the cases to watch — but maybe we can start taking bets here on how the cases will come out, which means predicting the all-important desires of Justice Anthony Kennedy, who will no doubt be the decisive fifth vote in all of them.

Fisher v. University of Texas at Austin: Can state universities use an applicant’s race in making admissions decisions? The Court narrowly split in upholding Michigan’s affirmative action plan a decade ago, and Justice O’Connor, who joined the liberals to uphold the use of race, has been replaced by Justice Alito.

The Libertarian Podcast, with Richard Epstein: “The Uses and Abuses of the Clean Water Act”

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| September 10, 2015

I know what you’re thinking: “I’ve just read this terrific Richard Epstein post on the Clean Water Act (see below), but where I can get some sweet Epstein environmental protection podcast action?” Well, friends, look no further. In this episode of The Libertarian podcast we endeavor to give a layman’s explanation of the Clean Water Act and explain how a well-intended law has obstructed genuine environmental protection while snagging innocent landowners in a needless regulatory morass. Listen in below or subscribe to The Libertarian podcast via iTunes so that you never miss an episode.

When Environmental Protection Laws Enable Pollution

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| September 10, 2015

Shortly after my piece “Filtering the Clean Water Act” went up at Hoover’s Defining Ideas, I got an email from Eric Wolinsky, who asked this question:

Lake Champlain has a significant pollution problem caused in large part by runoff from agricultural fields. The current rules require a buffer between crop land and ‘waterways.’ The problem is that there are no required buffers between cropland and ditches that don’t meet the definition of ‘waterways.’ During rains, the runoff enters the ditches, [and then] travels to the ‘waterways’ and on to Lake Champlain. The waterways are buffered, but the ditches are not. The runoff gets to the lake just as if the buffers on the waterways weren’t there.
How do you regulate this situation without expanding the definition of waterways?

The Libertarian Podcast, with Richard Epstein: How to Choose a Federal Judge

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| August 19, 2015

As a matter of probability, the next president is likely going to get several cracks at Supreme Court appointments. As a matter of certainty, he or she is going to have scores of appointments to make to lower federal courts. All of which raises a question: how exactly do you pick the right person?

In this episode of The Libertarian podcast, Professor Epstein identifies the hallmarks of good and bad judges, considers whether the confirmation process in Washington has become too political, and lays out the structural reforms that he believes could help the federal judiciary. You can take this podcast on the go by subscribing to The Libertarian via iTunes or you can listen in via the embed after the jump.

Why Hillary’s Lies Don’t Matter

By Marvin Folkertsma

Marvin Folkertsma

I am a retired professor from Pennsylvania who spends as much time as possible with my grandchildren while I constantly fret about the future of our country.

| August 4, 2015

The only thing that seems to be multiplying faster than the national debt, Donald Trump’s audacious comments, or the left-wing punditry’s gasps of horror over the death of what was apparently the globe’s favorite mammal, is Hillary Clinton’s accumulation of prevarications about … well, nearly everything she’s ever said for the past generation or so.

Hillary’s claims about never having been served a subpoena and maintaining only one device for her emails were lies. Her claim that Colin Powell did the same thing she did — and that she wasn’t required to turn over anything to the proper channels — was another whopper. Finally — and this is the kicker — her insistence that people “should and do trust me” should have generated tears of laughter from pollsters. It was for good reason that the late William Safire once claimed that Hillary Clinton was a “congenital liar.” And that was almost 20 years ago. Matters have not changed at all since that time — and arguably have gotten worse.

The question is whether or not her pathological lying makes any difference to her chances to become the next president. The most likely answer is, tragically: no, not a bit. Why not? Because we live in an era saturated by habitual lying, brazen lawlessness, and spectacular hoaxes.

The True Meaning of Marbury v. Madison

By Saint Augustine

Saint Augustine

I read and talk and write about philosophy for a living. I am also a Southern Baptist. I don't see any conflict between the two. I like things like my wife, good fiction books, good sci-fi television, the theory of hylomorphism, and a nice cup of tea. The closest thing I have to a personal website is my Academia.edu profile. I also run TeacherOfPhilosophy on YouTube, which probably has the best (and perhaps the only) collection of cartoons based on the dialogues and speeches of Plato and other g… [more]

| July 31, 2015

Michael Stokes Paulsen is one of America’s most prominent scholars of constitutional interpretation, and the co-author (with his son) of the recently-released, The Constitution: An Introduction. I just discovered his fascinating 2004 article, “The Irrepressible Myth of Marbury.” From the introduction:

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.

But, he argues, “nearly every feature of the myth is wrong.”

Member Post

By Stad

Stad is a member of Ricochet.

| July 21, 2015

With the recent Supreme Court ruling on homosexual “marriage”, I realized that polygamy must be next. At first, I was against it, but then I realized—it could be a boon! I asked my wife (Neutral Observer) if after the next Supreme Court ruling that polygamy is legalized, may I marry a woman 30 years younger […]

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The Right Response to Obergefell: Jurisdiction Stripping

By Adam Freedman

I've been writing about law, politics, and language for some years now. My book on states' rights, A Less Perfect Union, is published by HarperCollins. My book on constitutional originalism, The Naked Constitution, came out in 2012.

| July 18, 2015

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.

Clarence Thomas and the Rule of Law

By Paul A. Rahe

Paul A. Rahe is Professor of History at Hillsdale College, where he holds an endowed chair, and last year he was a National Fellow at Stanford University's Hoover Institution. He is author of Republics Ancient and Modern: Classical Republicanism and the American Revolution (1992) and of Against Throne and Altar: Machiavelli and Political Theory under the English Republic (2008), Montesquieu and the Logic of Liberty: War, Religion, Commerce, Climate, Terrain, Technology, Uneasiness of Mind, the … [more]

| July 11, 2015

There is an article by Dan McLaughlin in the latest issue of The Weekly Standard that you can find online and that you should take the time to read. Entitled “Giving Thomas His Due: The Justice Who Stands Alone,” it is a careful analysis of the jurisprudence of Clarence Thomas — the only Justice on our Supreme Court who takes the Constitution with full seriousness and rejects Woodrow Wilson’s demand that it be treated as a “living political constitution” subject to interpretation in a Darwinian, as opposed to a Newtonian, manner as an organism that evolves in a progressive manner. Here is a snippet:

Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly.

Obergefell and the Limits of Judicial Supremacy

By John Yoo

John Yoo is professor of law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. From 2001 to 2003, he served as deputy assistant attorney general in the Office of Legal Counsel in the Justice Department of President George W. Bush. He also served as a law clerk to Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas of the U.S. Supreme Court, and as general counsel of the U.S. Senate Judiciary… [more]

| July 7, 2015

In 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.

The Supreme Court’s Incomplete Raisin Decision

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| July 7, 2015

Many opponents of the government’s persistent meddling in agricultural markets hailed the recent Supreme Court decision in Horne v. Department of Agriculture — which found that a government scheme in which raisins are confiscated from growers in order to prop up crop prices constituted a taking that required just compensation — as a victory for limited government. As I note in my new column for Defining Ideas, however, the Court’s approach to this topic was woefully incomplete:

The most amazing part of this saga is not that the Hornes won, but that no one involved in the litigation used the word “cartel.” The Hornes had to avoid the term, which would undermine their claim. A cartel arrangement is not just a naked taking. Its offset turns out to be the higher prices that the Hornes and other cartel members can fetch for their remaining stock of raisins in the open market, which should count as a form of in-kind compensation under the Takings Clause. Under traditional antitrust lingo, they are cheaters who work under the cartel umbrella. All power to them!
Nonetheless, the government did not wish to make an open admission that the Marketing Act fortifies cartels, lest they undermine the stabilization myth that helps shield these cartels from public disapproval. And the Supreme Court, which has already blessed these grotesque arrangements, could ill-afford to undermine the legitimacy of its own earlier rulings, including Wickard, which props up the modern welfare state, including Obamacare.

Slate’s Rising Intolerance on Gay Rights

By Richard Epstein

Richard Epstein

Known to students at the University of Chicago and NYU law schools as “the libertarian,” Richard Epstein has established himself as an expert in constitutional law, contracts, corporate law, real estate law, torts, labor law—and even Roman law. He is reputed to be more knowledgeable about Justinian’s Code than anyone since the Emperor Justinian himself. The Peter and Kirsten Bedford senior fellow at the Hoover Institution, Richard Epstein is the author of several books including, The Cas… [more]

| July 3, 2015

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.

Process Matters

By Blue State Curmudgeon

Blue State Curmudgeon

I was born in 1957 in the Bronx, New York and grew up in Hicksville, NY on Long Island. I attended SUNY Oswego where I get a degree in Meteorology. I live in Baldwinsville, NY, a suburb of Syracus

| July 2, 2015

images One 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

By Dave Carter

Dave Carter is a former cross country truck driver, retired military veteran, private detective, and radio show host. As a Security Forces member and Senior Historian in the US Air Force, he deployed throughout Asia, Europe & the Middle East. Author of over 40 volumes of Air Force histories, he also accompanied aircrews on combat missions in order to record combat events from a participant's perspective. Dave is a Contributor for Ricochet, The Federalist, Conservative Review, the host of The… [more]

| July 1, 2015

The 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

By Troy Senik

Troy Senik was a White House speechwriter for George W. Bush. He is the host of the Hoover Institution podcasts Law Talk with Epstein & Yoo; The Classicist, with Victor Davis Hanson; and The Libertarian, with Richard Epstein. Senik is the author of the forthcoming book A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

| July 1, 2015

Still hungry for more razor-sharp constitutional analysis after yesterday’s Law Talk? You’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.

#AskSCOTUS

By Eustace C. Scrubb

Eustace C. Scrubb

Born in 1961 in Santa Rosa, CA. Graduated from high school from Piner High, Santa Rosa. Graduated from San Diego State University with an AB in Speech Communication. I graduated from Trinity Evangelical Divinity School with an MDiv. Married to the very wonderful Mindy. Worked in youth ministry for 30 years (sometimes full-time, sometimes part-time.) I also worked many years as a hotel night auditor. Now I'm a chaplain at the Men's Shelter of the Seattle Union Gospel Mission. Authored, among othe… [more]

| July 1, 2015

Amid all the bad news on Twitter this week — especially including all the recent Supreme Court decisions — something wonderful happened just the other day. E. L. James, the author of 50 Shades of Grey, opened herself to questions.

Among the wonderful responses she received:

#AskELJames after the success of “Grey,” have you considered re-telling the story from the perspective of someone who can write — Andrew Vestal (@avestal) June 29, 2015

The Hidden Message of Same-Sex Marriage

By Mona Charen

Mona Charen is a Senior Fellow at the Ethics and Public Policy Center. Her new book, Sex Matters: How Modern Feminism Lost Touch with Science, Love, and Common Sense, is available now.

| June 30, 2015

The 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.

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