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.