The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges–leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their “understanding” of a Court that “speak[s] before all others for their constitutional ideals”–with the somewhat more modest role envisioned for these lawyers by the Founders.
“The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .” The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
From the dissent of Justice Antonin Scalia in Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Kim Davis, elected Democrat county clerk of Rowan County, Kentucky, goes to jail for defying a Federal court over gay marriage. Details from Allahpundit at Hot Air:
An interesting detail from BuzzFeed: Lawyers for the gay couples who want her to issue the licenses asked the court to fine her, not send her to jail. Since when do gay-rights supporters ask for leniency for a Christian who’s defying them on gay marriage? Since, I think, this case started picking up national media attention. They don’t want to make a martyr out of Davis. Locking her up does that in a visible way that hitting her in the wallet doesn’t.
The court assumed, not unreasonably, that sympathizers would shower her with cash to cover the fine, which means there’d be no real pressure on her to comply with the order to begin issuing licenses. The only way to pressure her was jail.
“I’ve weighed the cost and I’m prepared to go to jail, I sure am,” Mrs. Davis told me in an exclusive interview. “This has never been a gay or lesbian issue for me. This is about upholding the word of God.”
“I would have to either make a decision to stand or I would have to buckle down and leave,” she said, pondering her choices. “And if I left, resigned or chose to retire, I would have no voice for God’s word.
That’s the first time I’ve heard a religious believer suggest that they wouldn’t have a voice for God without their public office, but okay. Meanwhile, Kentucky needs to figure out what to do about marriage licenses while she’s in jail. She can’t be fired; she’s an elected official. She could be impeached by the state legislature, but good luck getting politicians to hold a big public pageant in a red state to boot a devout Christian from office for resisting gay marriage as a matter of conscience.
Well, this is good news. I assume that we can now expect Federal courts to order the jailing of all who defy statutes and court orders. The IRS has blithely stated for years that they simply “are not in compliance” with various Federal court orders and suffered zero consequences. I eagerly await the incarceration of the mayors of hundreds of “sanctuary cities” around the country that have held that somehow the Federal immigration laws of this country do not apply within their communities. Then we have President Obama who has pointedly in the past simply refused to enforce laws that he does not agree with, and has unilaterally ordered what he clearly lacks the power, under the Constitution, to order. Continue reading
Part 19 of my ongoing survey of the follies of many modern day Jesuits. Jesuit university Fordham disabuses Catholics deluded enough to believe that liberal Catholics have not, by and large, fully embraced the zeitgeist of the secular left:
The New York Times, which wrote up a glowing report of the couple’s marriage, described Hornbeck, as “the chairman of the theology department and an associate professor of medieval and reformation history at Fordham University.”
The article somehow failed to mention that the only course he actually taught last semester was titled “Christianity & Sexual Diversity.”
One wonders how Fordham expects its Catholic theology to be “taught in a manner faithful to Scripture, Tradition, and the Church’s Magisterium,” as required by Catholic discipline, when the head of the department stands in open opposition to the Church’s teaching on marriage.
The wedding ceremony took place just days before the Episcopal Church in America voted to allow same-sex marriage rites in its churches, effectively sacramentalizing sodomy.
Fordham in turn has defended Hornbeck’s “constitutional right to marriage,” saying that his lifestyle choice is irrelevant to his role as a teacher of Catholic Theology.
“While Catholic teachings do not support same-sex marriage, we wish Professor Hornbeck and his spouse a rich life filled with many blessings on the occasion of their wedding in the Episcopal Church,” said Bob Howe, Fordham’s senior director of communications.
“Professor Hornbeck is a member of the Fordham community, and like all University employees, students and alumni, is entitled to human dignity without regard to race, creed, gender, and sexual orientation,” he said.
Howe stressed that same-sex unions are “now the law of the land, and Professor Hornbeck has the same constitutional right to marriage as all Americans.” Continue reading
Hattip to Allahpundit at Hot Air. Well, in addition to being an anti-Catholic bigot, the worst President not named James Buchanan or Barak Obama has now indicated that Christ would approve homosexual marriage.
“I don’t have any verse and scripture” to back that up, he allows, but he’s got a good feeling about it. And why not? “Jesus” is really just a stand-in in this question for morality writ large, right? If you support SSM you think the practice is moral (I should hope), and if you’re a Christian who believes something is moral, almost by definition you need to believe Jesus thinks so too. There’s nothing doctrinal about this, by Carter’s own admission. It’s just “I feel strongly this is right, ergo God must as well.” Continue reading
Co-blogger Darwin has a remarkably clear sighted post at his blog which lays out just how the Church will come under attack in the wake of the Supreme Court decision mandating gay marriage:
There’s a group out there which is very, very determined to win cultural and moral legitimacy for homosexual relationships, and to punish those who do not share those beliefs. Currently that group is at the cultural helm. In time, it will crumble and lose its ascendancy simply because it is not compatible with the realities of human nature. However, until that happens, the marriage equality group will not be satisfied by seeing Catholic priests stop signing civil marriage licenses, while continuing to celebrate religious marriage ceremonies only for opposite sex couples. They’re not stupid, and it’s recognition they want, not getting priests to stop signing a form for straight couples. Nor would “separating” civil and religious marriage be coherent from a Catholic point of view. Indeed, a non-Catholic couple who get married in front of a city clerk are (absent obstacles such as already being married to someone else or being of the same sex) viewed by the Church as being married, since the Church does not recognize there as being two levels of marriage. So the idea of “getting out of the civil marriage business” fails to protect us from the looming threat, while at the same time abandoning our Catholic principles as to the nature of marriage. There is no reason to do it. Continue reading
All of Justice Antonin Scalia’s judicial opinions tend to be memorable, but I think his dissent in OBERGEFELL v. HODGES will perhaps be his most cited opinion in what I expect to be a dangerous time for the American Republic over the next few decades. Here are quotes from his dissent to remember:
1. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
2. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
3. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.
4. This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
5. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
6. But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.
7. These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
8. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
9. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence. Continue reading
Now that Ireland has voted to approve gay marriage, a few thoughts:
1. Catholic Ireland is now Anti-Catholic Ireland-The Irish have always found scapegoats useful as an explanation for Irish failings. Britain long played this role and the Church is now filling this role. This vote, for many of the voters, was a joyous opportunity to give a one finger salute to the faith of their ancestors.
2. Spineless Shepherds-With one or two exceptions, the Irish episcopate was worse than useless. Cowardice was their most notable attribute. Expecting these timeservers to stand up for Catholicism in a hostile environment is like expecting a wolf to become a vegetarian.
3. Pope-MIA-The Pope has endless time to waste on made up problems like global warming, and to make snide remarks about faithful Catholics, but he uttered not a word on this vote. In the current feeble state of the Church in the face of her enemies, the fish does rot from the head down.
4. No Representation-All the major parties in Ireland backed gay marriage, so the 38% of the Irish people who voted against it, a huge block of voters in a proportional parliamentary system like Ireland, effectively have no political voice.
5. Iron Triangle-In Ireland government, academia and entertainment were all overwhelmingly in favor of gay marriage. The group think on this issue makes the old Iron Curtain countries seem diverse in comparison. Continue reading
The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.
Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them. This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue. The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding. In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision. Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:
In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)
You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.
In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion. Continue reading
Poor silly man, d’you think they‘ll leave you here to learn to fish?
Lady Alice to Sir Thomas More, A Man For All Seasons
Contrary to the popular idea that the success that the gay rights movement has had through the imposition of gay marriage by judicial fiat means the ending of a culture war, this is actually the beginning of a much greater one, as Robert Tracinski, a secularist, at The Federalist is wise enough to understand:
On Friday, city officials in Coeur d’Alene, Idaho, informed Donald and Evelyn Knapp, ordained ministers and proprietors of the Hitching Post Wedding Chapel, that they would be required to perform gay weddings or face fines or possibly jail time under the city’s “public accommodations” statute. Their religious views are expected to adjust to the edicts of the state.
So it’s official: a new religious orthodoxy is sweeping across the nation, imposed by government and backed by force. It’s a religious orthodoxy required by secular authorities for a secular purpose, but no matter. Heretics will be found out and forced to recant.
No one ever expects the Secular Inquisition.
Except that we actually did expect it. In fact, it’s inherent in the fundamental basis of the left’s arguments for gay marriage.
I’m speaking here of the argument for gay marriage. It may be hard to remember now, but not very long ago there were compromise proposals for same-sex “civil unions” that were legally equivalent to marriage but under a different name. Gay rights activists consciously rejected these unions in order to specifically demand the use of the term “marriage,” insisting that the state legally recognize and enforce the equality of these marriages with old-fashioned, outmoded heterosexual ones.
Personally, I have no problem with gay people getting hitched, having weddings, and saying that they are “married.” I don’t have any religious objection, on account of not being religious, nor do I think gay marriages, given their very small numbers, will have any particular impact on the state of marriage as an important social institution. (Which, alas, has all sorts of problems of its own.)
But the test of liberty isn’t what happens to people who agree with the intent of a particular edict. The test is what happens to people who disagree.
That brings us to the reason why gay rights advocates insisted on the government granting same-sex unions the title of “marriage.” The theory behind this was that homosexuals suffer from a lack of social acceptance, and gay marriage would put the government’s imprimatur on their status as social equals—along with the promise that this equality is to be backed by government force. Continue reading
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Abraham Lincoln, First Inaugural Address
God bless the Federal judiciary! After having such a smashing success in “resolving” the abortion issue by legalizing it, they have “resolved” the gay marriage debate by mandating it. Senator Ted Cruz (R.Tx.) is having none of it:
The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible. By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.
This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.
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. Because of the Court’s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.
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.
Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it. Continue reading
I am shocked, shocked, that Notre Dame, which honored Obama when he opposed gay marriage, blocks the speech of a group on campus that opposes gay marriage. Father Z gives us the details:
Young Catholics Not Welcome at the University of Notre Dame By Peter Miller April 29, 2014 Officials at the University of Notre Dame revoke permission for pro-marriage table, tell young Catholics to “cease and desist” promoting natural marriage on campus.
Sound Bend, Indiana: April 29, 2014 — Young volunteers with Tradition Family Property Student Action were ordered to “cease and desist” promoting traditional marriage at the University of Notre Dame on Friday, April 25.
“Permission to have a table had been granted through an officially recognized on-campus student group,” said TFP Student Action director John Ritchie. “But that permission was revoked for some odd reason. Police officers arrived soon after we started giving out pro-family literature and cut the event short, informing us that we were no longer welcome to talk to students about the importance of preserving the sanctity of marriage between 1 man and 1 woman, which fully agrees with 2,000 years of Catholic teaching,” Ritchie explained.
The TFP handout, 10 Reasons Why Same-Sex “Marriage” is Harmful and Must Be Opposed, was being warmly received by students and faculty members alike. However, several pro-homosexual students ripped up the flier, shouted obscenities, and expressed their desire to deprive the pro-true marriage volunteers of their right to free speech.
A blogger named Dennis Sanders has written about the recent controversy in Arizona from the perspective of a gay man (“married” and “a man of the cloth”, he says). There are two main ideas in his piece, one that is the centerpiece and another that is peripheral but also important. The centerpiece is that “marriage equality” advocates (I will call them same-sex marriage, or SSM advocates) ought to recognize that the refusal of orthodox Christians to participate in gay weddings is not necessarily or even often attributable to hatred and bigotry. Though SSM advocates may not understand or condone the religious and philosophical arguments we put forward, it would be better for society if people on both sides could stop assuming the absolute worst of one another. The peripheral argument is that this proposed change of tone and behavior on the part of gay marriage activists is necessary if they are to be gracious winners in the culture war. It is Sanders’ belief, shared by many on his side of the argument, that they have won this war even if we on the other side have not surrendered yet. His language is civil and conciliatory, though one still cannot help but feel that the main point here is “let the babies have their bottles.”
As far as the first argument goes, I am all for it. Though I am sure that Mr. Sanders would be deeply offended or perhaps just annoyed at my refusal to recognize his relationship with another man as a marriage, I have always been a proponent of true and authentic tolerance. Sanders quotes another writer on tolerance, and both he and this writer agree with me: tolerance is only possible in relation to something or someone we dislike. I dislike the “marriage equality” movement immensely, not simply because of some passages from the Bible, but because of its concentrated philosophical and political attack on the natural law foundations of Western civilization. Its incessant self-comparison to black civil rights struggles is as fallacious as it is nauseating; its core assumptions, taken to their fullest implications, are anarchistic and nihilistic. It is precisely because the vast majority of ordinary people rarely take their stated beliefs to their logical conclusions that I am able and willing to tolerate most of those beliefs. I believe we can have a pluralistic society, governed by the 10th amendment of the US Constitution, in which different people in different polities can establish different laws and customs by which they live. Furthermore, they can and should peacefully co-exist within the same American nation. Such was, I believe, the vision of our founding fathers.
Ben Domenech at The Federalist actually understands what the law is regarding homosexuals and private vendors:
Let’s get a few things straight. Jim Crow for gays was not prevented by Jan Brewer’s veto of their religious liberty bill last night. Indeed, most Arizona businesses – like most businesses across the country – are free under the law to discriminate according to sexual orientation or anything of the kind. The bipartisan group of law professors who helped draft legislation like this in other states – many of whom support gay marriage themselves – were the ignored parties in all the coverage of this story, as amateur legal minds screamed of legalizing all sorts of terrible things which are in reality already legal. Ilya Shapiro, one of Cato’s brightest thinkers, went even further in undermining the case against this law:
SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act (which passed the House unanimously, the Senate 97-3, and was signed by President Clinton in 1993). That is, no government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” This doesn’t mean that people can “do whatever they want” – laws against murder would still trump religious human sacrifice – but it would prevent the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category). The prototypical scenario that SB 1062 is meant to prevent is the case of the New Mexico wedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse to provide services to gay clients, but felt that she couldn’t participate in the celebration of a gay wedding. There’s also the Oregon bakery that closed rather than having to provide wedding cakes for same-sex ceremonies. Why should these people be forced to engage in activity that violates their religious beliefs? For that matter, gay photographers and bakers shouldn’t be forced to work religious celebrations, Jews shouldn’t be forced to work Nazi rallies, and environmentalists shouldn’t be forced to work job fairs in logging communities.
Some context is necessary here. In the wake of the curtailing of the Religious Freedom Restoration Act, states have pursued a host of mini-RFRAs which include protections for religious liberty. Attorneys and law professors who support gay marriage, such as Doug Laycock, have worked alongside attorneys from national faith groups to create legal language designed to follow the national RFRA’s model. This movement has recently fallen prey to the problems of any movement led by lawyers: it has seen a host of things that are benign in a legal context being misconstrued – or purposely lied about – to foment rage against things which are already legal, and ought to be in a society which values religious liberty. Kansas became the most recent example for pushback over the language proposed by these legal experts, though freelance efforts in other states have been even less successful (South Dakota didn’t even get out of committee).
The majority of the language in these bills, such as that related to maximum extent, is a cut and paste from the federal RFRA (of course, it’s a real question whether Chuck Schumer’s bill could pass today). These lawyers have attempted to ensure that those with sincerely held religious beliefs retain their ability to live and work in the public square without being compelled by the force of government – likely due to the ruling of a court – to do something which runs against their beliefs. Kevin Williamson notes the danger of this judicial fiat: “If anything, it is much more likely in 2014 that a business exhibiting authentic malice toward homosexuals would be crushed under the socio-economic realities of the current climate. That is a good thing for two reasons: One is that genuine hostility toward gay Americans is today a distinctly minority inclination but one that still should be challenged. The second is that it is a far healthier thing for that challenge to take place on the battleground of civil society rather than in the courts and legislatures.” But then again: “We are a Puritanical nation, which doesn’t mean we hate sex (the Puritans loved sex). It means that we are profoundly anti-Catholic and prone to stamping out dissenters. We used to use social consensus and economic pressure where we didn’t use convictions to accomplish this. Now we use the Supreme Court.”
The reality is that discrimination on the basis of sex in public accommodation and in numerous other ways is for the most part totally legal at the state level. Yes, this crazy Jim Crow reality that has been fearmongered to death is already the law in most states. Most people think it’s illegal, but it isn’t – last night I heard a sports radio host describing America as a place where “no one has any right to deny anyone any service any time for any reason”, which is pretty much the opposite of freedom of association. But while it is legal, it rarely comes up – because it is so infrequently an issue! It turns out most Southern Baptists are perfectly happy to take gay couples’ money and bake them a cake. The pursuit of a positive Yelp review can be a powerful motivator.
But – and here’s the real focal point of this issue – they should be free to choose not to. And those who favor human liberty should be in favor of defending this status quo. Elizabeth Scalia writes: “I feel like I’m watching my gay friends get mauled and then watching my Catholic friends get mauled, both by people who have lost the ability to do anything but feel and seethe.” Elevating emotion (even understandable emotion) over reason is precisely what statists do and have done for centuries, and something libertarians (and too few conservatives) rightfully decry. The end point of overreaching government is a reality where believers are forced to bake a cake to celebrate an act they view as sinful, but under no circumstances can they serve unlimited brunch.
If you believe markets work, if you believe people work, then you should have faith that legitimate bigotry will be punished by the marketplace. So Hobby Lobby and Chick Fil A and all the cakemakers who only make heteronormative cake will see their business drop because they were anti-women or anti-gay or what have you. Giving the government the power to punish them – which really amounts to giving elite trial lawyers that power – is madness if you believe in people and markets. Decisions made by free people within markets will sort themselves out better than giving courts and government and bureaucrats the power to do the sorting. No one will shop at the Nazi store without being judged for shopping at the Nazi store, so we don’t need government to ban the Nazi store. Continue reading
Larryd at Acts of the Apostasy has a first rate response to the attempts by gay activists to coerce businesses into providing services for gay marriages:
As more states allow so-called same-sex marriages, either by vote or governmental fiat, more and more small businesses owned by committed Christians, such as this bakery in Oregon, will be pressured to act contrary to their religious beliefs, and be forced to close, or fined beyond their ability to pay.
However, it needn’t be that way. At all.
While I commend and applaud the bakery owners cited in the above story, and fully stand behind them and other business owners in the exercise of their 1st Amendment rights, it must be understood that the instigators aren’t being motivated by matters constitutional. These gay activists aren’t looking for justice under the law per se; their goal is the minimization and outright obliteration of any Christian influence within the marketplace. They detest the influence of Christian morals, and have found a means by which they can reduce said influence, under the agreeable guise of “equality”: filing discrimination lawsuits against small business owners.
And for now, it appears they are winning. Courts have been ruling in their favor – rightly or wrongly – and with each victory, the gay activists are becoming more emboldened, and momentum is on their side.
It’s time to put an end to that right now, and there’s a legal way to do it. A way that respects the religious beliefs of the small business owners. A way that eliminates the “rights vs rights” battle.
Let’s use the example of the Christian bakery owner. All he would need to do is enact a company policy stating that some level of the profit, up to and including 100%, from any wedding reception contract, will be donated to organizations and/or candidates who support traditional marriage as between one man and one woman. This policy would have to be publicly posted within his establishment so as to remove any doubt from any customer where he stands on the issue. Thus, gay activists who want to order their cake from that bakery would understand in clear and precise terms that they will be funding organizations and/or candidates who stand for traditional marriage. Furthermore, this policy would affect every and any customer wishing to order a cake – gay, straight, whomever. Every wedding cake. Every platter of cannolis. Every dessert cart. That would eliminate any charge of discrimination, because everyone’s order would be helping to fund, say, the Family Research Council, or NOM.
If you think about it, there is nothing new about this. Large corporations publicize who they support all the time, and people decide whether or not to patronize them. Boycotts have been waged against Target and Walmart and other companies, for instance. It’s a thing. What I’m proposing is a bit more assertive, especially for small businesses and proprietorship, but it might be the protection – or at least a stopgap measure – they need.
Imagine it – Michael and Justin enter a bakery wanting to order a cake from John 3:16 Baked Goods. The owner sits down with them as they look over his portfolio, and select cake #19.
“How much for #19?” they ask, fully expecting him to tell them he can’t in good conscience make cake #19 for their reception. Their lawyer’s phone number is on their iPhone’s speed dial, and they’re ready to hit send.
But the owner doesn’t go there. Instead he says, “Well, that cake goes for $1500. But let me remind you guys – John 3:16 Baked Goods’ policy is that 100% of wedding contract profits goes to NOM, and I make about 10% on #19. So you’d be donating $150 to NOM, for all intents and purposes. Just so you know.”
“B..but we don’t want our money going to NOM!” they exclaim.
“Well, guys, here’s the thing about business. I provide a service for which you pay me money. Once you give me a check, it’s no longer your money. It’s my money, and last time I checked, I have the right to spend my money any way I please. But I feel it’s fair to tell you the store policy when it comes to any and all wedding reception contracts.”
At which point, Michael and Justin leave the store in a huff, and John 3:16 Baked Goods isn’t dragged into court. Because let’s face it – no militant gay activist will ever do anything to support traditional marriage. Their goal is to destroy and dismantle, and the very thought of any money going to organizations and candidates opposed to them – especially money from a check they just wrote – would prevent them from signing a contract.
Mind you, this won’t prevent persecution, or bad press, or personal attacks. And the bakery risks losing other business because, unfortunately, a good number of Christians don’t see a problem with so-called same-sex marriage. But the baker stays in business – earning a lower profit, mind you, I understand that – in order to provide for his family and his employees. And he’s witnessing to his faith, and putting his money where his mouth is. And every Christian baker that stays in the marketplace is good for the faith, and ultimately the marketplace is better for it.
Such a policy can be used by any business that provides wedding services – florists, photographers, limousines, and the like. It takes the “rights vs rights” element off the table, and turns it into a financial/economic circumstance. No discrimination. No bias. Merely a public company policy, informing customers upfront where the money will be going.
And believe me – like-minded Christians and traditional marriage supporters will flock and rush to help these businesses. So any lost profits from the wedding side of their business would be compensated. I truly believe that. Continue reading
I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.
Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.
Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.
As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.
Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.
That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.
The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.
The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.
Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.
But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?
Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.
Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy. Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.
No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.
Until the pro-Gay Marriage advocates came along, I thought the pro-aborts had cornered the market on ludicrous sophistry to support evil. However in some ways advocates of the lust that can’t shut up about itself have surpassed them. Matt Archbold at National Catholic Register counts the ways:
7) My son is gay!
This argument has been used most famously by Senator Rob Portman but many others have used it as well in order to “evolve” on this issue. This argument for gay marriage makes me wonder if they didn’t realize the existence of actual gay people until their own son just couldn’t quit the Glee Marathon.
Now, this may come as a shock to some parents but it’s possible that a child can make choices that the rest of Western civilization doesn’t have to bend its collective knee to.
Imagine this same argument by the parents of Lindsey Lohan because we’d all have to be for the legalization of drugs, okaying kleptomania, and approving of driving over photographers.
6) If marriage is for pro-creation, then old people who can’t have kids shouldn’t be allowed to be married.
Wow. What did old people do to you? I mean, I agree that it should be illegal for old people to kiss in public but come on, let them marry, if only to prevent them from dating.
This argument was proffered by none other than Supreme Court Justice Elena Kagan who asked, “Suppose a State said that, ‘Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.’ Would that be constitutional?”
Every time I read or hear the Harvard educated Kagan speak I think of dolphins because everyone tells me dolphins are really smart but there’s no actual evidence of them saying or doing anything smart.
But let’s be fair here. Major props to the liberal justice for finally tying her job to interpreting the Constitution. You just know Justice Breyer slipped her a note asking, “What’s this strange constitution thingie you speak of?”
But the fact that some married people can’t have babies doesn’t negate the existence of marriage anymore than it negates the existence of babies. Hey, that’s kinda’ weird because babies are another thing the Supreme Court likes to negate the existence of.
5) The Bible doesn’t say that engaging in homosexual acts is a sin!!!
Uhm. Well, it kinda’ does. A lot. The words “abomination” and “detestable” come up and there’s that little thing about not inheriting the kingdom of God. Saying the Bible doesn’t disapprove of homosexual acts is like saying Woody Allen movies don’t include whining. They kinda’ do. A lot.
But let’s just pretend for a moment it’s true that the Bible doesn’t specifically say homosexual acts are a sin. The Bible doesn’t go into detail about lots of bad stuff. The Bible doesn’t mention “Girls” on HBO or Nicholas Cage’s movie role selections, but I am pretty sure those are bad too.
4) Jesus was gay.
This one’s always interesting because many of the same people who say Jesus never really existed also say He was gay. That dichotomy would be deemed miraculous but they don’t actually believe in miracles.
Just this week, radio host Don “Help, I’m starting to look like the melting-face Nazi from Indiana Jones” Imus recently foisted this argument for gay marriage on liberal political analyst Kirsten Powers who at least had the smarts to distance herself from it like a normal person might do when confronted with a person whose face was melting.
According to news reports, Imus said to Powers:
“You know there’s a Gospel of Judas floating around,” he said.
“There were hundreds of gospels written, only four made it into the [Bible]. There was the Gospel of Thomas, Mary had a gospel, they all had a gospel. But Judas — there’s some indication there that Jesus may have been gay.”
OK since when did we all start listening to Judas anyway?
Anyway let me get this straight. They’re saying Jesus was gay? Jesus, who was willing to suffer and die for the Truth was in the closet? That doesn’t really make sense, does it? Continue reading
Every now and then as I begin to think about writing a post, I’ll see that someone has written on the very topic I was about to write about, taking the exact same view but expressing it in such a way that it would make any attempt on my part to add to it just plain futile. So when I saw Msgr. Pope’s blog post on gay marriage this morning, I realized he just saved me about an hour’s worth of writing.
Here’s the opening:
There is, among faithful Catholics, a dismay, and even an understandable anger at the events unfolding at the Supreme Court these past days related to to gay unions. And even if the court were to uphold traditional marriage (which does not seem likely), or merely return the matter to the States, it seems quite clear where our culture is going regarding this matter, approving things once, not so long ago, considered unthinkable.
What then to do with our dismay and anger? It is too easy to vent anger, which is not only unproductive, but in the current state of “hyper-tolerance” for all things gay, angry denunciations are counter-productive.
Rather our anger should be directed to a wholehearted embrace and living out of the biblical vision of human sexuality and marriage. Our anger should be like an energy that fuels our zeal to live purity, and speak of its glory to a confused and out-of-control culture.
The fact is, traditional marriage has been in a disgraceful state for over 50 years, and heterosexual misbehavior has been off the hook in the same period. And, if we are honest, heterosexual misbehavior and confusion has been largely responsible for bringing forth the even deeper confusion and disorder of homosexual activity, and particularly the widespread approval of it.
We have sown the wind, and now reap the whirlwind (Hosea 8:7).
Our anger, dismay and sorrow are better directed inward toward our own conversion to greater purity as a individuals, families and parishes, than outward toward people who will only interpret it as “hate” and bigotry” anyway.
There’s much more at the link as he delves into how the contraceptive mentality has already degraded marriage. There’s been a domino affect, and gay marriage is really just the last domino.
I was attending a conference this week and heard a speaker who talked about generational differences in the workplace. Even though it was geared towards workforce issues, it applied to our culture more generally. The overwhelming support for gay marriage among millenials (generally those 30 and under) is easily explained when you examine the context of the culture and society they grew up in. Not only is mass media propagandizing to them, but many if not most of these kids have developed in an environment where marriage is not the institution it was for our grandparents. In other words, heterosexuals damaged the institution long before homosexuals did.
That’s an argument often made by people who support gay marriage, and so we have a tendency to dismiss it. They happen to be right – it’s just that the logical conclusion that flows from that analysis is not that we should further erode the institution of marriage, but that we need to re-examine all of the other elements that have broken it down through the years.
At any rate, please read the rest of Msgr. Pope’s fine blog.
On a related note, Bill O’Reilly is still a pinhead.
Patterico at Patterico’s Pontifications has received copies of e-mails between retired Fededal District Court Judge Vaughn R. Walker and one of Ted Olson’s legal partners, demonstrating the depth of collusion between the judge who ruled that Proposition 8, the state constitutional amendment in California approved by the voters banning gay marriage was unconstitional, and Ted Olson who led the legal team seeking to overturn Proposition 8:
Vaughn R. Walker, the judge who struck down Proposition 8, California’s gay marriage ban, sought Ted Olson’s opinion regarding whether Walker should attend next week’s Supreme Court arguments on the gay marriage cases. Olson was one of the lawyers who successfully persuaded Judge Walker to strike down Proposition 8 after a trial held in 2010.
In December 2012 emails obtained exclusively by Patterico.com, Judge Walker, who retired in February 2011, asked Olson’s law partner to “ask Ted if he thinks my attending the argument would be an unwanted distraction.”
When Olson’s law partner responded that Olson thought Walker’s attendance would be a “potential distraction,” Walker agreed not to go, saying he understood Olson’s reaction and was not surprised by it. Walker described himself as “only moderately disappointed not to see the argument,” and added: “Ted’s argument will be spectacular, I’m sure.” Continue reading