Supreme Court marriage ruling is a ‘constitutionally illegitimate fiat’

The court didn’t interpret a law. It invented a right.

And it turned on the feelings and thoughts of Justice Anthony Kennedy, who wrote the majority opinion and proved to be its pivotal player. No matter how prepared the experts in jurisprudence I’ve dealt with for years thought they were for this decision, they were all stunned when it came out, so sweeping was its usurpation of judicial power and lack of recourse to history and tradition.

So historic and pivotal a moment as this requires full examination, there are so many angles and issues. For now, start with law professor Helen Alvare’s early assessment of what happened, and especially whether and how the ruling considered a largely overlooked population of people generally left out of gay marriage debates: children.

Regarding children’s interests, until the first same-sex marriage opinions began to emerge in the states, every state and the US Supreme Court had grounded marriage recognition in the state’s interest in linking children with their parents. Adults received rights respecting marriage and parenting, because they first had duties — duties to the children the vast majority of marriages produced.

Today, the Supreme Court rules instead, however, that marriage is about adults’ “defin[ing] and express[ing] their identity,” adults’ desire for “nobility,” “fulfillment,” “aspirations,” “autonomy,” “self-definition,” avoiding of “loneliness,” and desire for “companionship and understanding”. The list goes on.

Regarding children? Who have now been stripped completely out of any definition of marriage that any state is permitted to have? The majority opinion assumes that there will be trickle-down benefits for children. But of course it could offer no evidence on this point. In fact, the vast majority of children (86%)[1] reared in same-sex homes have a legal mother and father and will not be affected by the new marriage rights of the same-sex couple in their home; they were conceived in a prior heterosexual relationship by one of the now-LGBT partners. And the testimony of now-adult children reared in same-sex homes reveals their deep longing and loss respecting the absent parent of an opposite sex, even as they often loved the adults who raised them.

More on that to follow here in the days ahead, with adult children of same sex parents now speaking out in greater numbers.

As for Helen’s footnote [1], here it is:

[1] Gary J. Gates, Family Formation and Raising Children Among Same-Sex Couples, Nat’l Council on Fam. Rel.: FAMILY FOCUS, Winter 2011, at F1 [hereinafter Gates, Family Formation] (“[One research study] suggest[s] that offspring of lesbian and gay parents are more often the product of different-sex relationships that occur before individuals are open about their sexual orientation.”); GARY J. GATES, WILLIAMS INST., LGBT PARENTING IN THE UNITED STATES (2013) (providing a statistical summary of the demographics of lesbian, gay, bisexual, and transgender (LGBT) households); Ronald Bailey, “The Science on Same Sex Marriage,” The REASON FOUND. (April 15, 2013),  (“Nearly 20 percent of same-sex households . . . reported having children, and 84 percent contained children biologically related to one of the householders.”).

Links are on the Crux post of her opinion piece, which should be thoroughly read.

So should this piece by Professor Alvare.

Today’s opinion in Obergefell v. Hodges, which invents a constitutional right to same-sex marriage applicable to the 50 states, is a story of judicial pride, successful marketing by same-sex marriage groups, and the triumph of modern therapeutic individualism. It is not a legal story. It has “nothing to do with” the Constitution, as Chief Justice Roberts so accurately states in his dissent…

Roberts warned same-sex marriage advocates that they had “lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause,” because such opportunities require legitimate democratic process, not constitutionally illegitimate fiat.

This is only the beginning of a better understanding of what’s happened here. And what is about to.

Who speaks for women?

Now that’s become a very interesting question.

This election, candidates and campaigns are as focused as ever on demographics. But this year, the ‘Woman Vote’ has either hit a new stride, or been thrust into a endurance marathon. The competition over who speaks for women hasn’t been this strong since the original feminists emerged. That competition has re-emerged because their voices and message have been subjugated since Roe.

Every year since Roe, the March for Life rally on the Mall of Washington has continued to draw larger numbers of pro-life advocates, well over 200,000 participants from around the nation and the world, braving some of the worse winter weather and other hardships  and winding up joyful and energetic in the harshest conditions to stand up for the right to life.  And they’re increasingly young participants.

So in this election year madness with the HHS mandate calling contraception, morning after pills and sterilization procedures ‘women’s preventive health’, and enforcing it on virtually all employers’ health care plans  no matter whether it violates their conscience or morally informed beliefs about the dignity of all human beings…or not…the issue is prominent in politics and public debate.

The ‘Women Vote’ has become a key battleground for candidates, as if it were monolithic. Stabs have been made to shore up support for the HHS mandate, or at least the appearance of it, and they have fallen way short of anything significant.

The other day, there was a ‘We Are Women’ rally, which drew a scattering but got shored up by hyperbolic media. Take this report, for example:

Women across the country participated in “We Are Women” rallies on Saturday to protest state legislation limiting access to contraception and abortion. Hundreds of advocates gathered in Kansas, Colorado, Virginia, Florida, Arkansas, Idaho, and Oklahoma to demand that lawmakers abandon efforts to undermine women’s health.

“Today’s rally was part of a national movement that has had enough of the war on women,” Kansas rally organizer Kari Ann Rinker said.

This is sheer sophistry, an exercise in wordplay. There is virtually unlimited access to abortion and contraception in this country. The aggression over moving the bar has been on the side of abortion and contraception activists to make it now a luxury paid for by employers and everyone else in spite of birth control pills posing dangers that undermine women’s health. Oh, the irony.

What isn’t being talked about is that the new mandate also pre-disposes women to serious long term and permanent health problems. In conjunction with the defense of both religious liberty and the spiritual well-being of women, we must also refute the absurd and deceptive statement that “women are healthier on birth control.”

Providing free hormonal birth control to women under the guise of ‘preventative services’ and ‘women’s health’ is a lie and women of all faiths deserve to know the truth.

Hormonal birth control methods can enter the body in various ways. These ways include ‘The Pill’ (by mouth), the Mirena IUD (Intrauterine Device), the implant (placed under the skin), ‘the Patch’ (absorbed through the skin), and the Vaginal Nuvaring. There are many other estrogen -progestin name brands that can be added to this list. Any way you name it, these hormone drugs dispense poison into a woman’s body.

Perhaps HHS Secretary Kathleen Sebelius should inform her President of the following before he makes additional statements to the press like “it is cheaper to prevent than to treat.” Consider this:

— Since 1975 there has been a 400% increase in “in situ” breast cancer among pre-menopausal women under 50 years old. This mirrors the increased use of birth control over these same years. (“In situ” is a medical term which means “at the location”.

— A Mayo Clinic study confirms that any young girl or woman who is on hormonal birth control for 4 years prior to their first full term pregnancy increases their breast cancer risk by 52%.

— Women who use hormonal birth control for more than 5 years are four times more likely to develop cervical cancer.

— The International Agency for Research on Cancer (IARC), a research arm of the World Health Organization, classifies all forms of hormonal contraception as a Group 1 carcinogen. This group of cancer causing agents also includes cigarettes and asbestos. Why is it that the FDA can require cigarette manufacturers to place warning labels and real life photos of corpses on cigarette packages to warn consumers of the health dangers yet they, in turn, take an equally harmful substance (hormonal birth control) and force companies to give it away free to young girls without parental consent and woman of all ages?

— For high school boys and men to take steroid drugs, it is a crime. Whereas girls and women taking steroid drugs (i.e. hormonal birth control) are now treated as if they are taking a sacred, life preserving vitamin that women cannot live without.

That nails it.

This is not information that should be kept from the public. Women deserve to be told the truth. They are not being warned that birth control methods are causing breast, liver, and cervical cancer. They are not being told about the “silent killer” effect which is causing them to unknowingly abort their babies. They are instead being told that they are healthier on birth control because it decreases ovarian and uterine cancer. According to the American Cancer Society, out of 100 women with cancer, 31 have breast cancer, 6 have uterine cancer, and 3 have ovarian cancer. This is not a healthy tradeoff of risks that is worth taking.

If, indeed,” it is cheaper to prevent than to treat” then it is time for the White House, Kathleen Sebeilius, and all health agencies within the government to sound the warning trumpet to warn women on hormonal birth control about these devastating medical consequences.

Clearly, birth control does not help women at risk, it places women at risk.

So this small ‘We Are Women’ rally draws a small group of demonstrators and gets hyped as ‘thousands, nationwide’ while the ‘March for Life’ rally gets virtually igorned each January.

But media attention is irrelevant for the validation of some strong women’s initiatives growing and spreading now since the HHS mandate was announced. Like ‘Women Speak for Themselves.’ Who are being validated by new signers every day.

WSFT began with an open letter to the White House, Congress and Secretary Sebelius in February 2012, demanding respect both for religious freedom and for an understanding of woman’s freedom and equality that goes beyond “free contraception.”  It now has over 31 thousand signatories from every state.

“It defies reason that a few groups could speak for all women on issues of life, family, sex and religion,” said WSFT founder, Helen Alvare.

“The 31,000 plus women who have signed onto our open letter will no longer sit silently by while a few political figures and their allies insist that religious freedom has to bow to the theory, the ideology really, that the centerpiece of women’s freedom is sexual expression without commitment,” continued Alvare.

Catherine, a woman in her twenties living in New York City and a signatory, wrote to WSFT: “Out of respect for themselves and others, many women choose to live a life of sexual integrity…Many of my girlfriends and I have found this approach to our sexuality to be freeing, empowering, and constitutive of a deep sense of happiness.”

“I’m a pro-choice woman who respects the rights of other women to hold different views,” wrote another WSFT member Carol, from Vermont. “More specifically I expect the government, in compliance with the Constitution, to protect every person from being coerced into acting in a manner contrary to his or her conscience. The HHS mandates are a fundamental violation of our rights to free speech and religion.”

Hundreds more women wrote to WSFT to express their strong opposition to the message of the Saturday rally.

Here’s their message:

“An honest ‘We Are Women’ rally would acknowledge the diverse views held by women. It would acknowledge the science about the decline in women’s well-being associated with the world view this rally represents,” Alvare says. “No one speaks for all women on these issues. Let women speak for themselves.”

HHS mandate ‘for the women’

Some audacious claims have been made in Washington lately on behalf of women. They clearly speak for Planned Parenthood and women in league with their cause. Where are all the women for whom they do not speak?

Here.

Like countless other women, we’ve been closely following the Obama administration’s attempt to compel religious institutions to provide contraceptive coverage in violation of their beliefs. And like countless other women, over the past several days we’ve heard House Minority Leader Nancy Pelosi and others repeatedly ask those who oppose the contraceptive mandate, “Where are the women?”

Here we are.

Equal rights. Now pay equal attention to these voices. Because word spread like wildfire that they were being represented in a public statement.

We listened to prominent women purport to speak for us. We watched them duck the fundamental religious-liberty issues at stake. And we saw them assume that all women view cheaper contraceptives and abortion-causing drugs as unqualified goods.

In response, we circulated an open letter to a few dozen of our female friends in support of the competing voice offered by Catholic institutions on matters of sex, marriage, and family life. The letter spread, and in 72 hours we received some 750 signatures from a diverse group of women across the country, including women serving overseas. Signatures are still flooding in. Doctors, nurses, lawyers, teachers, mothers, business owners, community volunteers, scholars — women from all walks of life are proud to stand together with the Catholic Church and its invaluable witness.

I am one. My signature went on the statement in the early going, but they were so inundated with responses they could only work so fast, and decided to post it now and add on daily.

Most of us are Catholic, but some are not. We are Democrats, Republicans, and independents. Many work or have worked for a Catholic institution. We are proud to have been associated not only with the work that Catholic institutions perform in the community — particularly for the most vulnerable — but also with the shared sense of purpose found among colleagues who chose their job because, in a religious institution, a job is also a vocation.

To a woman, we are deeply troubled by the mandate’s violation of fundamental religious-liberty protections…

Those who invoke “women’s health” against those of us who disagree with forcing religious institutions or individuals to violate deeply held beliefs are more than a little mistaken — and more than a little dishonest. Even setting aside their simplistic equation of “costless” birth control with “equality” and “women’s health,” note that they have never responded to the large body of scholarly research indicating that many forms of contraception have serious side effects; or that some contraceptives destroy embryos; or that government contraceptive programs inevitably change the sex, dating, and marriage markets in ways that lead to more empty sex, more non-marital births, and more abortions. It is women who suffer disproportionately when these things happen.

No one speaks for all women on these issues. Those who purport to do so are simply attempting to deflect attention from the serious religious-liberty issues at stake. We are proud to stand with the Catholic Church and its rich, life-affirming teachings on sex, marriage, and family life. We call on President Obama, Health and Human Services Secretary Kathleen Sebelius, and our representatives in Congress to respect religious voices, to respect religious liberty, and to allow religious institutions and individuals to continue to provide witness to their faiths in all their fullness.

Women speak for themselves. And many, many more are speaking up in league with them by the hour.