Monday, October 6, 2014, goes down in history as a great sin
of omission—a moment when something could have been done for the sake of
civilization, and it wasn’t done.
This is part of the problem of getting ourselves into the
position of trusting nine unelected lifetime appointees to determine what is
law. That’s not how the writers of our Constitution set things up; that’s the
result of corruption. But, since they have that power, failure to use it for
good can be a significant failure.
The Supreme Court is more or less free to take up any case
that works its way up to the SCOTUS level of appeal, or to not take up a case for any reason.
In general, when they take up a case, it can be with the purpose of defining a
point of dispute in the US Constitution.
In a piece at Breitbart, Senator Ted Cruz describes what was
happening:
The Supreme Court is, de facto, applying an extremely broad
interpretation to the 14th Amendment without saying a word—an action that is
likely to have far-reaching consequences. [It is] beyond dispute that when the
14th Amendment was adopted 146 years ago, as a necessary post-Civil War era
reform, it was not imagined to also mandate same-sex marriage, but that is what
the Supreme Court is implying today.
The Court is making the preposterous assumption that the
People of the United States somehow silently redefined marriage in 1868 when
they ratified the 14th Amendment…. Nothing in the text, logic, structure, or
original understanding of the 14th Amendment or any other constitutional
provision authorizes judges to redefine marriage for the nation. It is for the
elected representatives of the People to make the laws of marriage, acting on
the basis of their own constitutional authority, and protecting it, if
necessary, from usurpation by the courts.
The 14th Amendment is longer than I want to quote
entirely here. Its purpose was to make sure freed slaves, nor any other
citizen, did not have their citizenship rights abridged. The salient part
reads:
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws.
There is nothing in there saying, “no state shall define
marriage in a way that meets with disapproval in some circles in 2014.” A
marriage is a contract. In contracts, terms are defined. The US DOMA law,
recently struck down, was simply the federal government defining the term for
use in federal contracts; it was struck down, because, according to Justice
Kennedy, states should retain the right to define that term for themselves.
Many states have gone out of their way to define the term
marriage as a contract between one man and one woman, including placing the definition in their state constitutions (Texas did this in 2005 with an overwhelming majority of about 78%). There is nothing in the
definition that prevents any citizens or group of citizens from taking part in
such a contract. Any homosexual person who chooses (and some do) can marry a
person of the opposite sex and enjoy all the benefits of that contract,
including bearing and raising offspring.
The current rulings at issue claim that the very definition
of marriage discriminates and therefore cannot be allowed. Circuit court judges
have wiped out the sovereignty of a dozen states, not based on law, not based
on SCOTUS precedent, but simply based on their misconstruing the 14th
Amendment.
These are political (politically correct?) decisions, not
law-based decisions. We need an authority to put a stop to them.
If SCOTUS had chosen to add these cases to this year’s case
list, it would have left the cases in dispute, and marriage licenses would not
be issued to people who did not qualify for them. With the failure to take on
the cases, it means, until further notice, the most recent rulings stand—forcing
the states in question to start issuing licenses to same-sex couples—or any
other couple (or other multiple) that hasn’t heretofore been granted a marriage
license because of not meeting the definition of the term in the contract. If states are not allowed to
define the term of this contract, all comers, married already or not, close
relatives or not, same or opposite sex or more than one of any such
combination, must be allowed—because the circuit courts have ruled that states
are not allowed to define the term since it might be construed to be
discrimination.
It’s a chaotic mess.
Meanwhile, other cases are pending in other circuit courts—which
indications seem to show will be logically ruled based on law, rather than on
judicial whim. Then there will be a hodgepodge of licensing requirements,
depending on which judge said what to which state.
Eventually the Supreme Court will have to take up the issue.
Then there will eventually (assuming sanity on the final
ruling) be a nullification of licenses granted from this point until the
ruling shows such licenses to be invalid.
One of the best discussions I heard was on Hugh Hewitt’sWednesday show, third hour, with John Eastman, President of National
Organization for Marriage, and one of Hewitt’s go-to law specialists. You can
only get to the archive with subscription, so I’m providing a chunk of the
transcript below. Their discussion doesn’t provide a solution, but I still
found it enlightening. (HH is radio host Hugh Hewitt, and JE is John Eastman.)
HH: John, how do you read everything that has happened in the
marriage cases in the last 24 hours?
JE: Yeah, we’ll extend it to 72 hours, to Monday morning,
which I think we must. It’s just utter chaos. And I am deeply disappointed in
the institution of the Supreme Court, for the chaos that is now following in
the wake of their non-decision of Monday morning. What they had pending before
them was seven different circuit decisions, in cases coming out of five
different states, three different circuit court of appeals, with both sides of
the cases urging the Supreme Court to take the issue and settle once and for
all whether the Constitution mandates that the states redefine marriage to
include same-sex relationships. The Court denied cert in all of those, and that
left the lower court decisions in place. And in many of those states—Utah,
Oklahoma, Virginia, Indiana, Wisconsin—marriage licenses began issuing
immediately. But the Court hasn’t settled this, so there’s still pending
litigation in the 8th Circuit, and the 5th Circuit down in Texas and Louisiana,
and the 11th Circuit, and most imminently in the 6th Circuit cases out of Ohio
and Kentucky and Tennessee and Michigan.
We expect the 6th Circuit is going to uphold those state’s
laws, and I think the Court will have to take this up at that point, because
there will be a very important circuit split on a fundamentally important
Constitutional issue. And the chaos that has happened in the meantime will have
continued for no reason.
HH: What do you make of Justice Kennedy enjoining Idaho from
issuing licenses, but subsequently today apparently clearing the way for Nevada
to do so?
JE: So, what happened yesterday was the 9th Circuit issued
its decision, and it had pending before it cases in Idaho and Nevada. It also
had a case out of Hawaii, and we haven’t heard what they’re going to do with
that one yet. But it consolidated the Idaho and Nevada cases into a single
order. And then Judge Reinhart issued the mandate immediately, rather than
pursuing the normal procedure, which is to allow the parties an opportunity to
petition for rehearing on bond or to ask the Supreme Court to review the case.
And so Idaho’s governor filed an emergency application for a stay about 3:00 in
the morning, because marriage licenses were ordered to start issuing at 10 AM
this morning. And Justice Kennedy granted that stay. The caption on the case
was the consolidated caption, which had Idaho and Nevada, and so the stay applied
to both cases. But then Justice Kennedy, a few hours ago, clarified that, no,
it was only in Idaho, because it was only Idaho that asked for a stay. The
Nevada governor has apparently decided to throw in the towel. Now, about 30
minutes ago one of the other parties in that Nevada case filed an emergency
application for stay with Justice Kennedy, and I don’t think we have word on
that one yet.
HH: Now, your interpretation, John Eastman, of why the Court
did what it did? I have my own. People understand me to believe that they are
waiting for the split to develop, and that they did not want to grant cert
prematurely to having a split. Others have a more sinister view, the Ruth Bader
Ginsburg view, that it’s better not to have a replay of Roe and just allow this
to be nullified. The voters’ wishes nullified by circuit judges instead of
Supreme Court Justices. What do you think?
JE: I tend to side on
the cynical view. And there are several versions of the cynical view, but
that’s, I think, the most prominent of them. The problem with waiting for the
circuit split theory is, if all of the lower courts had upheld the state
constitutional provisions at issue, then you would wait for a circuit split. If
no court is going to strike down a state constitutional provision, there’s no
reason that the Supreme Court needs to weigh in. But when you’re talking about
the lower courts striking down very significant provisions of the state
constitutions recently adopted by overwhelming majorities of the citizens of
those states, you don’t normally wait for a circuit split. That is such a
threat to the state sovereignty by itself that it warrants Supreme Court
review. But the Court on Monday decided not to bother, and to let the dust
settle as it may.
HH: Best case scenario, in your view?
JE: Best case scenario is a 6th Circuit with a very strong
opinion from Judge Sutton reminds the Court of a couple of things: that this is
a state issue—Justice Kennedy told us that in the DOMA case just two years
ago—and the federal courts have no business being involved in it. And that
circuit split, then, is ground for the Supreme Court to take it up and affirm
the 6th Circuit’s well-reasoned opinion. That’s the best case scenario….
HH: John, as I was going to break, I cannot tell you how
cynical I am about the courts now. And I tell my students, it’s a game. It’s
just a political game, because no one can reason the way these courts did on
marriage. No one can say North Carolina didn’t know what they were doing, or
that the law changed, that the 14th amendment embraced…. It’s just a joke. It’s
about politics. The Supreme Court could rescue us from that. And the only way
to do that, though, is, they some people to come over the hill with some
opinions. And they’re just not there. So I do understand reticence of Roberts,
Alito, Scalia, and Thomas to do this without anyone on their side.
JE: It’s a good theory, but here’s why I disagree with you.
There are very strong, well-reasoned opinions in dissent in the 10th Circuit
cases by Paul Kelly, judge out of New Mexico, and in a 4th Circuit case out of
Virginia by Paul Neimeyer. They’re thorough. They’re well reasoned. They take
account of existing Supreme Court precedent. They deal head on with Justice
Kennedy’s opinion for the Court in Windsor, the DOMA case, and point out why,
on Justice Kennedy’s own terms in that decision, it doesn’t invalidate state
laws. And they’re thorough. So if that’s what they’re waiting for, they already
had it, albeit in dissent.
HH: But in dissent.
JE: That’s right. But they could have held onto these cases.
They know that the 6th Circuit decision is coming soon. They’ve been following
news accounts that everybody expects the 6th Circuit to uphold the Ohio,
Kentucky, Tennessee and Michigan marriage laws, which are identical to the
other ones….
In the meantime, you’ve got this utter chaos. You know, what
are you going to do? Are you going to unravel…? You’ve got judges now in Utah
taking these decisions, and now saying that Utah’s statues on polygamy are
invalid. Because if this is just a fundamental right to marry whomever you want
under whatever circumstances, which is the way these cases have been portrayed,
why should I have….
HH: That’s why they have to deal with it eventually, which is
why you might want to…. I remember that Churchill kept urging Eisenhower to
invade Europe in ’42 and in ’43, and Ike just kept saying, “Wait. Wait. Not
ready yet.” So am I persuading you to be less cynical?
JE: No. I’m still cynical. Because they took the Proposition
8 case from California without a circuit split. So they obviously thought it
was important there.
I wouldn’t want a premature wrong ruling, which would
essentially kill marriage, as has happened in Scandinavia. I want the right
ruling, and I don’t know, politically, what must happen to get that. I prefer
to read the Constitution, understand it, follow it. That’s what SCOTUS is
supposed to do. I pray things work out well in the end. But in the meantime,
the propaganda war that is taking away our freedoms, our state sovereignty, and
the family as the basic unit of civilization is getting a lot of loud media,
while the good guys are intolerantly called intolerant.
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