America is 239 this year. It’s a great place if you ask me. I haven’t been to a lot of places outside of the United States, but I’ve been to enough to know that this is the greatest place on the planet to live. I’m grateful every day that I somehow landed here when I was born.
A couple years ago I did a post about America and how lawyers
were great defenders of freedom, especially Justice Kennedy on the Supreme
Court. One of the quotes I shared at the
time from his Prop8 dissent was: “The essence of democracy is that the right to
make law rests in the people and flows to the government, not the other way
around. Freedom resides first in the people without need of a grant from
government.”
Apparently Justice Kennedy forgot this when he wrote his
majority opinion in Obergefell v. Hodges
essentially making same-sex marriage legal nationwide. As Chief Justice Roberts
notes in his dissent: “Understand well what this dissent is about: It is not about
whether, in my judgment, the institution of marriage should be changed to include
same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people
acting through their elected representatives, or with five lawyers who happen to
hold commissions authorizing them to resolve legal disputes according to law.
The Constitution leaves no doubt about the answer.”
The Justice Kennedy of 2013 agreed with that statement.
Instead, the Justice Kennedy of 2015 thinks that his opinion is now more
important than that of the people. His opinion is not based on any precedent
whatsoever. Now, don’t get me wrong, the Court has always found new implied,
fundamental rights (i.e. right to privacy, right to travel, etc.) under a
Fourteenth Amendment Substantive Due Process Analysis. The problem is that they
completely abandoned any principles that they typically adhere to. As Justice
Kennedy said himself “One can conclude that certain essential, or fundamental,
rights should exist in any just society. It does not follow that each of those essential
rights is one that we as judges can enforce under the written Constitution. The
Due Process Clause is not a guarantee of every right that should inhere in an ideal
system.” As Justice Roberts points out, there are specific guidelines the Court
adopted to protect the Court from subverting the democratic process. After
emphasizing the importance of judicial restraint in these types of situations,
Roberts explains that “[o]ur precedents have required that implied fundamental
rights be “objectively, deeply rooted in this Nation’s history and tradition,” and
“implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed.”
Roberts points out the legal and logical flaws in the
Majority’s Due Process analysis and sums it up by saying “The purpose of insisting
that implied fundamental rights have roots in the history and tradition of our
people is to ensure that when unelected judges strike down democratically enacted
laws, they do so based on something more than their own beliefs. The Court
today not only overlooks our country’s entire history and tradition but actively
repudiates it, preferring to live only in the heady days of the here and now.”
Roberts also shows the flaws in the Court’s Equal Protection
Clause analysis by saying that “the majority fails to provide even a single
sentence explaining how the Equal Protection Clause supplies independent weight
for its position, nor does it attempt to justify its gratuitous violation of
the canon against unnecessarily resolving constitutional questions….In any event,
the marriage laws at issue here do not violate the Equal Protection Clause,
because distinguishing between opposite-sex and same-sex couples is rationally
related to the States’ “legitimate state interest” in “preserving the traditional
institution of marriage.”
As both Roberts and Scalia point out, this is worrisome for
a democratic society. With one opinion and five votes, half of the state’s
marriage laws were invalidated. This is despite the recognition by Justice
Kennedy two years ago that “regulation of domestic relations is an area that
has long been regarded as a virtually exclusive province of the States.”
Apparently no more. The debate that was occurring at ballot boxes across the
country is now ended. If this case sets the precedent that five people can end the
democratic process on a particular issue, as Justice Roberts points out, “Even
enthusiastic supporters of same-sex marriage should worry about the scope of
the power that today’s majority claims.”
In a lot of ways this has been a long time coming. Alexander
Hamilton warned about the danger of the numeration of specific rights in the
Constitution in The Federalist Papers.
I go further, and affirm that bills of rights,
in the sense and in the extent in which they are contended for, are not only
unnecessary in the proposed constitution, but would even be dangerous. They
would contain various exceptions to powers which are not granted; and on this
very account, would afford a colourable pretext to claim more than were
granted. For why declare that things shall not be done which there is no power
to do? Why for instance, should it be said, that the liberty of the press shall
not be restrained, when no power is given by which restrictions may be imposed?
I will not contend that such a provision would confer a regulating power; but
it is evident that it would furnish, to men disposed to usurp, a plausible
pretence for claiming that power. They might urge with a semblance of reason, that
the constitution ought not to be charged with the absurdity of providing
against the abuse of an authority, which was not given, and that the provision
against restraining the liberty of the press afforded a clear implication, that
a power to prescribe proper regulations concerning it, was intended to be vested
in the national government. This may serve as a specimen of the numerous
handles which would be given to the doctrine of constructive powers, by the indulgence
of an injudicious zeal for bills of rights.” Essentially, Hamilton was saying
that the Constitution itself is a Bill of Rights to let the people govern
themselves and protect them from the Government depriving them of liberty.
Justice Thomas sums it up well in his dissent in Obergefell, as he rejects the only real
argument that the Majority makes in favor of its decision: dignity. “The flaw
in that reasoning, of course, is that the Constitution contains no “dignity”
Clause, and even if it did, the government would be incapable of bestowing dignity….Human
dignity has long been understood in this country to be innate. When the Framers
proclaimed in the Declaration of Independence that “all men are created equal” and
“endowed by their Creator with certain unalienable Rights,” they referred to a
vision of mankind in which all humans are created in the image of God and
therefore of inherent worth. That vision is the foundation upon which this
Nation was built.” We are all children of God and that indeed does give us
inherent worth.
Regardless of where you are on the issue, the Court’s ruling
is worrisome. Religious freedom is on the attack. If you support traditional
marriage, you are a hater. A bigot. Intolerant. The court essentially agrees
with that by not even mentioning or recognizing religious freedom in its
opinion. The irony is that many states have protecting religious freedoms when
legalizing same-sex marriage through the democratic process. In so doing, the
Court and society as a whole has forgotten the definition of tolerance. “A
fair, objective, and permissive attitude toward those whose opinions, beliefs,
practices, racial or ethnic origins, etc., differ
from one's own.” By not accepting the other side’s view, they are showing
their intolerance. It’s a two way street. We will have to see how this one
plays out, but it does not look good.
Our system is founded on the rule of law, and this decision
provided neither predictability nor stability regarding any sound legal theory.
It was nice prose and sounded good. I mean who can object to Kennedy’s closing
statement sounding good. “No union is more profound than marriage, for it
embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.
In forming a marital union, two people become something greater than once they
were. As some of the petitioners in these cases demonstrate, marriage embodies
a love that may endure even past death. It would misunderstand these men and
women to say they disrespect the idea of marriage. Their plea is that they do respect
it, respect it so deeply that they seek to find its fulfillment for themselves.
Their hope is not to be condemned to live in loneliness, excluded from one of
civilization’s oldest institutions. They ask for equal dignity in the eyes of
the law. The Constitution grants them that right.” What the Justice Kennedy of
2015 forgets is that it wasn’t for him to decide what the definition of
Marriage is. That is for the people to govern themselves. For as he said
himself “The essence of democracy is that the right to make law rests in the
people and flows to the government, not the other way around. Freedom resides
first in the people without need of a grant from government.”
