The last week in June has become an agonizing time for Americans who care about the future of the country. It is the time when one Justice on the Supreme Court decides the course of life for 300 million plus Americans and future generations. One because the Court’s swing vote – often Justice Kennedy – determines everything. This is not what our framers intended by a long shot.
Last year we anxiously awaited the ruling on Obamacare. I personally think Justice John Roberts was intimidated or threatened to swing his vote pro Affordable Care Act. His illogical opinion for the majority seems to have been written at the last minute because it appears mixed. I’m not alone in believing he had a last minute switch. Senator Mike Lee has written a book, “Why John Roberts Was Wrong About Obamacare,” in which he says the Chief Justice was pressured into his ruling. Perhaps his epilepsy was used against him. Ever since the revelations about how much the Obama administration can find out about us or can get tapes of us, this theory seems all too plausible.
We know that public opinion can sway Justices as well. The D.C. party scene and their exclusion from it, has had an effect on some of them. Neither are they infallible. Lots of rulings have been altered later.
Anyone who thinks that what happens in the last week of June when the rulings come out are fair, had better reevaluate. That’s why it’s such an angst ridden time.
All this proved too true yesterday when the Court decided to throw religious liberty and thousands of years of human culture out the window to accommodate today’s fashionable ideas. No one was probably surprised by their ruling against marriage. But it was sad nonetheless.
Justice Scalia’s scathing (that’s the word everyone has echoed) rebuttal has gotten a lot of attention. TheBlaze.com has highlighted his twelve most salient points.
• The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
• That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
• There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life.
• Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.
• There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.”
• My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
• Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due- process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages.
• To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.
• It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
• By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
• In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
• Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.
The trend the Obama administration is pushing – that their opponents are either racists or bigots or both – is frightening. There is no respect, as Scalia says, for any arguments on the other side. Nor is there an understanding of the threat this poses to freedom of religion.
Those of us who are Catholic expect our priests to follow the doctrines of the faith, and that means that they are not allowed to marry same sex couples, or polygamist couples, or people who want to marry their brother/sister/pet. If the state says they must, then priests are in a position of either following their conscience and faith or breaking the law. Obama says he does not plan to do that. Does anyone believe him?
The mounting tensions that pit our traditional national beliefs and the overruling of the people put us in a precarious situation. Civil wars have broken out over less. No one wants to see that happen, or do they?