It’s Been a While

I realize that, as I write this post, I have no followers because I haven’t yet gotten to a place with my blog in which I want to publicly promote it.

Nevertheless, I currently write posts as if I do have an audience, even if it is only myself.

Accordingly, for any visitors who happen to come across my oldest posts after a significant amount of time post-publishing, I will explain my absence.

Though I tend not to be very involved with social media — for example, I access Facebook perhaps once per month — I was discouraged from any sort of interaction whatsoever after June 26, 2015.

Yes, this article is going to discuss the issue of marriage. Be forewarned. But also be respectful of others’ right to disagree. I am amazed at the audacity of so many commenters of online content who resort to name-calling and other invidious, immature, and unwarranted behavior.

Let’s act like adults.

I have no patience for disrespectful comments, and they will be deleted. [Actually, at present I am still debating whether I should allow comments on my site at all. Although I have such a distaste for the disrespect I see online — which is one of the major reasons I rarely access it — on the other hand I see so much good in people, as exemplified by this community discussion on the Desk App forum. Assuming I do enable comments, I will adhere to a strict policy that removes vitriolic comments.]

But back to the reason for my respite…

Obergefell v. Hodges was a tough one for me. After the decision was handed down on June 26, I chose to avoid the internet. As the public policy director for a non-profit organization dedicated to upholding Biblical principles in the public square, I have a qualm with the outcome of the case, that same-sex couples have a fundamental constitutional right to marry.

More than that, however, I struggle with the jurisprudence (or perhaps the lack thereof) upon which the Supreme Court based its opinion. Not only does it defy my personal religious beliefs, it offends me as a lawyer and legal scholar.

I could only assume the vitriol of both poor “winners” and perhaps poorer “losers” would frustrate me. Thus, I waited a few days.

But after reading Justice Anthony Kennedy’s opinion it was also hard to know where to begin. I have heard highly critical comments of his opinion even from some who agree with his determination.

Two years ago — interestingly also on June 26 — in United States v. Windsor, he wrote, “[The federal Defense of Marriage Act] because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.” In other words, the “actions [by the State of New York to legalize same-sex marriage] were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” (Emphasis added.)

Justice Kennedy had no problem citing his previous opinion from Lawrence v. Texas (2003), which invalidated Texas state law criminalizing sodomy — an opinion that was, again, interestingly handed down June 26. In doing so, the judge of the high court noted, “The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.”

I suppose we were to ignore the fact that the only claim for relief by Ms. Windsor was for a refund of the estate tax she had to pay after her “spouse” died and left Ms. Windsor her estate. Why, Your Honor, would you have cited your own opinion from Lawrence and mentioned the fact that States may not punish sexual intimacy between two adults, but you failed to cite with any real clarity in Obergefell your opinion from Windsor that specifically spoke at length about the distinct right of the States to define marriage? Lawrence had nothing to do with marriage; Windsor was about the same issue, homosexual marriage.

Instead, in his most recent June 26th opinion, Justice Kennedy contradicted his Windsor opinion by holding that the States do not have the right to preclude homosexuals from marrying because the 14th Amendment gives the Court the right, via the substantive due process clause, to create public policy to protect same-sex couples from ostensible marginalization.

Wait, so when States were legalizing homosexual marriages that was okay, but those that defined marriage as between one man and one woman are precluded from exercising their sovereign authority? I must be missing something.

Apparently, “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.”

So if I wanted to identify myself as someone who should not be forced to pay taxes, wear a seatbelt in the car, and purchase a health insurance plan under threat of penalty, I am protected by the Due Process Clause? Well, maybe I like this decision after all!

You mean that Baronelle Stutzman is protected by the Due Process Clause in her decision to refuse to provide her floral services for a same-sex wedding because of her personal beliefs? And Aaron and Melissa Klein have a fundamental liberty in refusing to bake a cake for a homosexual wedding and not be punished by their State with gag orders and judgment liens? Well, cool! I guess it’s all good.

Oh, wait. Ms. Stutzman and the Kleins are being punished and threatened? Hmmm… And I have to pay taxes, wear my seatbelt, and purchase a health insurance plan (or pay a tax (penalty))? Okay, so apparently there is a limit to the Due Process Clause. I guess, since Ms. Stutzman and the Kleins were acting according to their deeply held religious beliefs, and since freedom of religion is in the very 1st Amendment of the Constitution, they are not protected. Because apparently we live in bizarro world now, where up is down, gay means homosexual, and enumerated rights in the Constitution mean much less than those fabricated by the Supreme Court based on a few select words in the 14th Amendment, which I thought had to do with slavery being outlawed.

Well, maybe there is a more recent case than Windsor that might serve to clear up all this darned confusion because, well, Windsor and Obergefell just don’t seem to make sense when considered in conjunction with one another.

Golly, I wonder if Justice Kennedy may have written something perhaps last year that could give me some more perspective…

Hey, whadda ya know? It just so happens he did!

On June 2— ahem, April 22, 2014, Justice Kennedy delivered his opinion in Schuette v. Bamn, a case in which Michigan voters passed a ballot measure banning the use of affirmative action in college admissions. He wrote, in pertinent part:

Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate … or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common.

Kennedy continues a couple paragraphs later:

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.

***

Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

I thought that’s what more than 50 million Americans decided to do when they voted to define marriage as between one man and one woman in 26 states.

I will admit, the Schuette case does not address homosexual marriage, but I would contend that both the marriage and race relations issues are sensitive ones. What’s more, I have seen numerous advocates of same-sex marriage advocate that opposing same-sex marriage is akin to being a racist and that laws which “prevent” homosexuals from marrying are reminiscent of Jim Crow laws. By the way, in states that had defined marriage as between one man and one woman homosexuals were not prevented from marrying. They were prevented from marrying particular groups of people. But they still are, and so are heterosexuals. For example, I cannot legally marry anyone else because I am currently married. I also cannot marry, regardless of my marital status, a minor or any of my close relatives. And I wouldn’t want to do any of that. But if I desired to, should I be able to have the law changed simply because my sense of dignity would be otherwise damaged?

If it offends the dignity of polygamists and the like to not be afforded such a right, should the law be amended to include more than two adults?

Instead of playing social scientist, which he is not qualified to do, Justice Kennedy should have paid more attention to his own prior rulings. Instead, he has carved out yet another special niche from the 14th Amendment Due Process Clause, a clause that becomes more and more penumbric as time goes by. (See Griswold v. Connecticut, holding that the right of privacy is formed by the Bill of Rights, which has penumbras “formed by emanations from those guarantees that help give them life and substance.”)

There is an adage, “Hard cases make bad law.” Perhaps I’ll coin a new one: “Bad opinions make bad law.”

I really like what Chief Justice Roberts noted in his dissent. Although I disagree with the practical arguments made by same-sex marriage advocates, I, like the Chief Justice, am more concerned that this decision is a usurpation of power by the Court:

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Just as Justice Kennedy stated in Schuette regarding affirmative action, the definition of marriage is an issue that should not be withheld from voters.

Marriage, to rebut the Obergefell opinion, does not exist to confer a sense of dignity and inclusion into a group. Marriage exists to recognize the fact that men and women bring distinct, irreplaceable gifts to family life. Under this new regime, marriage is nothing more than a members only club. And the only qualification for joining now is that the two — perhaps soon, more than two — people “love” each other. But that is an inherently poor qualification. Not only is love subjective, but its manifestations are numerous and varied. I love my daughters dearly, but there are multiple reasons my relationship with them is not characterized as marriage, although my heart melted the first time my three year old daughter said she wanted to marry me.

Love, by itself, is necessary but insufficient to define marriage, like defining a penny merely as a piece of metal. There are many pieces of metal that cannot be defined as a penny. There are also many loving relationships that cannot be defined as marriages.

As a father in a post-Obergefell world, I worry about being able to teach my children that.

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