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.

Supreme Court marriage rulings shift American government tradition

We have always been a nation whose government serves by the consent of the governed, with separate and enumerated powers, states’ rights, rule of law and all that. Things have been ‘evolving,’ in popular parlance. With the Supreme Court rulings on marriage this week, we got a paradigm shift from self-government to ‘the tyranny of the majority,’ though that needs clarification to understand the meaning of “majority”, the way most of the language we’re using these days could benefit from clarification.

So just to recap quickly, John Adams, Alexis de Tocqueville and John Stuart Mill all referred to this term, roughly to mean ‘those who control the levers of power’, in my shorthand translation. Lord Acton put it thus:

The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.
—The History of Freedom in Antiquity, 1877

It’s apt, as Pope Benedict found it to be in his address to the UN General Assembly in 2008 warning about the consensus of the few in power not necessarily representing what’s best for the people they govern.

Which gets us to this week’s Supreme Court ruling.

There is much to unpack here. Some quick picks for first analysis:

NRO editors were succinct.

The Supreme Court declined to rule that every state in the country must recognize same-sex marriage, but do not be fooled. Five justices have taken the position that there is no rationale other than hostility to homosexuals for defining marriage as the union of a man and a woman. When they believe the time is right to issue a more sweeping ruling, they will. This issue will no longer be one on which democratic deliberation is allowed.

There’s the throwdown. They decided a pair of cases, one involving Prop 8 and one involving DOMA. There are reams of commentaries to digest, but here’s a blast of clarity:

Justice Anthony Kennedy, writing for the four Democratic appointees and himself, argues that the motivation for the law was a “bare congressional desire to harm a politically unpopular group.” The Court is not saying merely that supporters of the historic understanding of marriage are wrong, or even merely that this understanding runs afoul of the Constitution (in some unspecified way: As Justice Antonin Scalia’s dissent notes, Kennedy’s opinion is hard to pin down on the question). It is saying that the supporters bring nothing but bigotry to the discussion.

This follows the type of wording Kennedy has used for at least a decade, so it didn’t surprise Court watchers though it dismayed a segment of them.

But here’s an essential point:

The real argument for continuing to treat marriage as the union of a man and a woman is that marriage and marriage law exist to channel sexual behavior in a way that promotes the flourishing of children. They exist, that is, to solve a problem that does not arise in same-sex unions: that heterosexual sex often gives rise to children. They exist to uphold the ideal that children need the mother and father who created them to stay in a stable relationship together. Recognition of same-sex marriage means that the institution is no longer about those things.

That just stated the reasons for marriage law and the State’s interest in it. It also revealed the stark reality that marriage is what the consensus defines it as now.

This, I think, is important:

What should have mattered in court was that weighing that question is not their business. Justice Samuel Alito’s dissent got it right. “Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law,” he writes. The Constitution is neutral on whether governmental recognition of same-sex marriage will undermine the institution of marriage, strengthen it, or have no effect at all; it does not contemplate the question.

We could come to a full stop right there. But let’s move into another analysis piece about what the Court did, by the authors of ‘What Is Marriage?’

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation. The Court refused to “discover” a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all fifty states. Citizens and their elected representatives still have the right to define marriage in civil law as the union of one man and one woman.

So those of you who believe in that had better go for it, because the window is closing. Because as the NRO editors concluded…

The justices have not yet decided that we who disagree are to be permitted no influence whatsoever on the country’s marriage laws, but the clock is ticking, and this Court has no patience for self-government.

Some of my expert guests on radio this week have said justices, particularly Kennedy, are just waiting for the case to be brought that will give them cause to redefine marriage for the entire nation. And inevitably, it will.

But in the meantime, consider what those who want that redefinition are after. Dr. Paul Kengor puts a fine lens on it, one that bears reflection. All other arguments aside for the moment, marriage re-definers are after fatherless or motherless families, if children are involved at all. And that’s something we should all be concerned about. We all used to be, not that long ago, as Kengor points out.

In a speech back in 2008, President Barack Obama was emphatic in championing fatherhood:

“We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it.

He added:

“Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. … If we are honest with ourselves, we’ll admit that what too many fathers also are is missing – missing from too many lives and too many homes. … We need fathers.

Amen to that. Who would disagree? Back then, no one. So, as Kengor asks…

…why are President Obama and the liberals suddenly pushing relentlessly for fatherless families – or, more specifically, for a new form of American families that are fatherless?

The answer, of course, is gay marriage. With their sudden embrace of gay marriage, a massive shift not only within America, American culture and human civilization, but also within the Democratic party, liberals/progressives nationwide are – whether they realize it or not – simultaneously advocating a redefinition of family that embraces fatherless ones. Think about it: married female-female parents will be households without dads.

Which used to be point – fatherless households – on which liberals and conservatives agreed. It was to be avoided whenever and however possible, because of the importance of fathers.

Kengor already cited Obama on this in 2008. Now he unifies – or universalizes – the message.

In 1984, President Ronald Reagan described fathers as beacons of “strength and well-being” who are responsible for “leadership and direction and teaching them integrity, truth and humility.” He added, “Every father rises to his tallest stature as he selflessly cares for his family, his wife and his children.”…

A decade later, such sentiments were consistently reinforced by Democratic president Bill Clinton, who understood the toll delivered by fatherless homes…

That principle remains unchanged. What has changed, however, is liberals/progressives’ fierce acceptance and advancement of gay marriage. In this rapid push, they are jettisoning this national consensus on fathers, demanding a form of parenting that excludes fathers. As for those who disagree with their new paradigm, they are derided as cruel, thoughtless bigots, with no possible legitimate reason for their unenlightened position.

Actually, what today’s liberals are advocating is far more radical than that. They are pushing not only for fatherless families but also, conversely, motherless families. Think about it: married male-male parents (the other half of gay marriage) will be households without moms.

Everyone reading my words knows that mothers are utterly irreplaceable. That’s a statement of the obvious…

Why would anyone, let alone a country or culture, want to open the door for a reconstitution of parenthood and family that, by literal definition, excludes mothers?

So implied in all this is the whole category of human beings whose rights aren’t as often advocated for, because they don’t have such powerful, well funded and well connected advocates. The children.

As President Obama said in 2008, if we’re honest with ourselves, we’ll admit that children need fathers. Yes, if we’re honest. They need fathers, and mothers.

Cross stays, Court rules

This post should be called ‘Battle after battle’. First the ones that take the lives of our Armed Forces in active duty. Then the ones that take issue with the crosses in memorials that honor the service of the fallen.

Today, a victory for the cross. And reason.

The Supreme Court on Wednesday reversed a lower court decision that could have required removal of a cross that has stood in California’s Mojave National Preserve for generations.

Although it splintered [nice double entendre] in its reasoning, the court suggested strongly that the cross should remain because Congress has transferred the small plot on which it stands to a private group, addressing constitutional concerns.

“The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm,” wrote Justice Anthony Kennedy. “This cross,” he wrote, “evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles.”

Enough said? Should be. But where there are crosses, there are activist atheists….(one is tempted to say raising hell)….