Category archives: Government

Valley of the Shadow of Death

by Jamie Dangers

July 17, 2015

Even though I walk through the valley of the shadow of death…”

Recently, I listened, sickened, as Planned Parenthood Federation of America’s Senior Director of Medical Services cavalierly discussed their harvesting and selling of babies’ organs. She ate and drank casually while describing which parts of the babies’ bodies would be crushed by the forceps and which would not, depending on which organ(s) needed to be kept intact in order to be sold. In great detail, she spoke of how babies would be manipulated into the breech position with ultrasound guidance in order to allow certain organs to be removed more easily. The method she described is suspiciously similar to partial birth abortion. Without shame, she stated that while there is a partial birth abortion ban, “Laws are up to interpretation. So if I say on day one I do not intend to do this, what ultimately happens doesn’t matter.”

Is this really what we have come to? In America, are we literally walking through the valley of the shadow of death? It certainly feels that way.

I know abortion is not always an easy choice that mothers make. I know sometimes girls and women are there out of desperation. I know sometimes they are pressured into it. I know sometimes they feel like they have no way out. I know sometimes they feel like they have nothing to offer their child in life. And I am so very sorry.

Can we take a step back for a minute? Let’s look at the leaders of Planned Parenthood Federation of America (PPFA) and its affiliates. How did they become so callous as to condone the ripping apart of babies and the selling of their hearts, lungs, livers, and muscles, behind closed doors, in violation of law, not to mention violation of basic human ethics? Surely this latest news is enough to finally convince us that PPFA leadership is not passionate about the empowerment of all women and safe reproductive health. They don’t care about compassion. Why? Because they are changing abortion procedures, not to help the women, but to most successfully harvest organs. But goodness, they sure are passionate about keeping the door wide open on “choice,” because without it, how would they make money? They will do anything and everything, vile and horrific, for profit.

They have been so thoroughly deceived and their consciences so seared that they are walking through the valley of the shadow of death, digging that valley even deeper, and they don’t even acknowledge it. They try to make it appealing and honorable. They try to dress up the horror with words like “research” and “consent” and “high-quality health care.” But no one can put a pretty bow on the dismembered bodies littering this valley floor and make it all ok somehow.

In what world do we discuss the nuances of exactly how much money was spent on which organ and whether it was a donation or reimbursement or payment, in order to make it seem less awful?

This is a culture of death that we cannot afford to ignore. It is our culture. We are right in the middle of it, paying for it with our tax dollars, willingly or unwillingly.

A culture of death is a completely logical culture for anyone who doesn’t value life. While we should be nauseated by the grotesque practices of abortionists behind closed doors, it occurs to me that I should not have been shocked. To them, babies are devoid of human dignity and value, so why not make a profit off of their organs? It’s all about the bottom line anyway. They call it fetal tissue. The truth is, those parts are real organs from unborn children. Organ donors are commendable, but abortionists who profit from the organs of babies who cannot give their consent are deplorable.

Sometimes I wish I could run out of this valley, or at least close my eyes and hold my nose to pretend this doesn’t exist. But the fact is, this is where we are. It’s time to decide what to do. Ignoring it, downplaying it, sterilizing it will only result in allowing death to spread. We cannot ignore this. We cannot pretend it isn’t that bad, or that it will go away. It is that bad, and it won’t go away unless we do something about it.

We must fight with love and compassion but also with incredible resolve. This is a deep and dark valley, yes, but love, truth, and compassion can transform it.  Death can be overcome with life, darkness with light. We can raise this valley and clear it of shadows, allowing light to once again shine on it and purify this blood-stained ground.

We are still in this valley of the shadow of death. But let’s not be wearied or discouraged into accepting it as it is. Let’s be the generation that transforms it. Let’s build a culture that celebrates life!

Guttmacher’s Proposition: Taxpayer-Funded Condoms and Vasectomies

by Sean Maguire

July 16, 2015

In the latest issue of the Guttmacher Policy Review, the Guttmacher Institute (formerly the research arm of Planned Parenthood), proposes some changes to the Affordable Care Act (Obamacare) they feel are necessary to accomplish the goals of that law.

             Obamacare contains many provisions we have only found out about since Congress passed it. The most famous (or infamous) of these is the mandate, administered by the federal Health and Human Services (HHS) department, that requires coverage of 18 forms of contraception, including drugs and devices that can kill embryos.  These are to be funded by taxpayer dollars and included in plans provided by businesses and organizations despite any moral objections they might have.

            Guttmacher is not satisfied with this arrangement. No, it’s not upset that the American people are being forced to pay for potentially embryocidal drugs and devices.  Guttmacher is upset because the HHS mandate hasn’t gone far enough. They are pushing for the mandate to include male sterilization and condoms, all funded by taxpayer money.

            Instead of recognizing the failure of Obamacare to accomplish real healthcare access for the American people, Guttmacher is calling for an expansion of coverage morally unacceptable to tens of millions of taxpayers. They are calling for the implementation of regulations which will mandate insurance coverage of condoms and vasectomies for everyone.

            Guttmacher wants tax dollars to be spent on condoms and vasectomies so that sexual license will not be impeded by a lack of funding or fear of the logical outcome of sexual intimacy: babies. While Guttmacher says it wants the federal government to stay out of the bedroom, they simultaneously demand federal funding of the activities therein.

            It is not the job of the American taxpayer to fund others’ sexual practices, and they should not be forced to do so.

Support for Israel is Declining in Democrat Party

by Chris Gacek

July 7, 2015

Support for Israel is waning in the Democrat Party.  The Times of Israel’s editor, David Horovitz, posted an important yesteday article showing that Israel is rapidly losing support among Democrats in the United States.  Support for Israel among Republicans appears to be holding steady though. The polling was done by U.S. pollster, Frank Luntz. 

According to Horovitz:

Three quarters of highly educated, high income, publicly active US Democrats — the so-called “opinion elites” — believe Israel has too much influence on US foreign policy, almost half of them consider Israel to be a racist country, and fewer than half of them believe that Israel wants peace with its neighbors.

47% of Democrats agreed with the characterization that Israel is a “racist” country, while only 13% of Republicans agreed.  Luntz noted that Israel will soon no longer have bi-partisan support in the U.S. Furthermore, many Democrats are becoming ideologically aligned with the Palestinians.

Luntz believed that the findings are disastrous for the Jewish homeland:

He said he “knew there was a shift” in attitudes to Israel among US Democrats “and I have been seeing it get worse” in his ongoing polls. But the new findings surprised and shocked him, nonetheless. “I didn’t expect it to become this blatant and this deep.”

He is traveling to Israel this week to discuss the findings with government officials. 

Another dimension of the problem for Israel is that American Jews are reflexive supporters of the Democrat Party.  This means that American support for Israel in the Republican Party rests largely with evangelical Christians.  Prominent GOP establishment figures, like James Baker III (form Sec. of State, and Sec. of the Treasury), are known to have no love for Israel.

Federal Judge and the ACLU Agree that RFRA Protects Religious Exercise in the Military

by Travis Weber

July 1, 2015

In another affirmation that the Religious Freedom Restoration Act (RFRA) protects the constitutional right of free exercise for military service members, a federal judge recently ruled that the statute protected the rights of a Sikh to receive a grooming accommodation while enrolled as an Army ROTC cadet at Hofstra University.

After the Army denied the student’s accommodation request which was made when he sought to enter ROTC, the ACLU filed suit on behalf of the student, alleging that the denial violated RFRA (and citing the standard under the recent DOD Instruction 1300.17). In its complaint, the ACLU asserted the Army policy “substantially burdens his religious exercise because it mandates conduct that is prohibited by his religious beliefs and substantially pressures him to modify his behavior in violation of his faith.”

In ruling on these claims, the federal court in the District of Columbia noted that while there is judicial deference to military decision making, RFRA also clearly applies to the military; indeed, “[t]he Department of Defense expressly incorporated RFRA into its own regulations effective January 22, 2010.”

Under RFRA, if an individual can show that government action has substantially burdened their religious exercise, then the government has to show it has a compelling reason for burdening the belief, and has done so in the least restrictive way possible.

In this case, there was no dispute that the plaintiff’s religious beliefs were sincere, and the court found that they were substantially burdened:

Therefore, there is no dispute that the Army’s refusal to grant plaintiff the accommodation that would enable him to enroll in ROTC while maintaining his religious practice was a government action that required plaintiff ‘to choose between following the tenets of [his] religion and receiving a governmental benefit.’” Such a denial “constitutes a ‘substantial burden’ under RFRA.”

The court acknowledged that the military is a distinct area of society with very unique concerns regarding order and discipline. However, Congress clearly meant RFRA to apply to the military and the statute clearly applies to situations like this.

Its analysis continued: “This case appears to be the first to squarely present the question of how a court is supposed to incorporate traditional deference to the military into the RFRA strict scrutiny analysis.” Therefore, the court looked to an area to which Congress also clearly meant RFRA to apply—prisons. In that context, the Supreme Court ruled earlier this year in Holt v. Hobbs that a sister statute with the same standard—the Religious Land Use and Institutionalized Persons Act—required the strict scrutiny standard to be applied to each situation in a “‘more focused’ inquiry” assessing whether the religious exemption can be granted.

The court dismissed the Army’s arguments that earlier cases—including Goldman v. Weinberger—require deference here, noting that “those cases predate RFRA.” Instead, the court chose to look to the framework laid out in Holt.

The Army also tried to argue for deference on the theory that it was better equipped to deal with social changes on its own (such as the repeal of “Don’t Ask, Don’t Tell”), but the court rejected that argument, noting that “even if it involves an important matter of public policy and evolving social norms, Congress has already placed a thumb on the scale in favor of protecting religious exercise, and it has assigned the Court a significant role to play.”

The court continued by ruling that the Army has not shown that denying the accommodation here (while granting numerous such accommodations in other cases) advances any compelling interest of the military. Notably, “[t]he Army conducted an internal examination of the effect of [another Sikh’s] religious accommodation on his service, and the study concluded that “the Soldier’s religious accommodations did not have a significant impact on unit morale, cohesion, good order, and discipline,” and that it “had no significant impact on his own, or any other Soldier’s, health and safety.”

The Army’s heavy reliance on uniformity in denying this accommodation and assertion that “compliance with Army grooming standards facilitates ‘the ability to assess a Soldier’s competency and attention to detail’” is irrelevant to the religious basis of the requested accommodation here and fails to satisfy “the individual assessment that is fundamental under RFRA.”

For “the accommodation this plaintiff seeks does not stem from any lack of self-control, dedication, or attention to detail. To the contrary: plaintiff seeks an accommodation because he faithfully adheres to the strict dictates of his religion. So even if, in some cases, a soldier’s failure to follow the Army’s standards might signal a rebellious streak or reflect a lack of impulse control or discipline, LTG McConville’s decision fails to grapple with the fact that any deviation from the rules on plaintiff’s part flows from a very different source. And therefore, the decision lacks the individual assessment that is fundamental under RFRA.”

In concluding, the court affirmed that it would not give blind deference to the claims of even very senior military decision makers as sufficient to trump religious exercise rights:

Notwithstanding [LT General McConville’s] thirty-four years of experience in the Army … and his superior judgment about military matters, adopting his conclusion [that the accommodation should be denied] without more would entail abdicating the role that RFRA requires the Court to play.

Finally, the court noted that even if there was a compelling interest here, the Army had not accomplished it by the least restrictive means—it had rejected the plaintiff outright, instead of at least permitting him to initially enroll in the ROTC program (during which time he is not yet commissioned).

The ACLU did well in laying out robust religious freedom arguments so far in this case. It merely remains for the organization (and others like it) to do so in other contexts. These advocates must see that after (rightly) supporting the Sikh’s religious exercise in this case, such support must flow to all religious exercise in order to consistently support religious freedom and the First Amendment. Anything short of that is picking and choosing the contexts in which the advocate wants the First Amendment to apply—and that is certainly not supportive of constitutional rights for all.

This case is certainly a win for the free exercise of religion in the military. It is also a case likely to produce odd bedfellows; the ACLU is supporting robust free exercise in a case involving a Sikh, but conservative Christians, Muslims and others concerned about religious freedom in the military will see it as helpful to their own causes. And rightly so. Congress passed a statute restoring strong free exercise protections. It did so with strong bi-partisan support, and made clear the law applies to the military. At least for now, a court has affirmed that the statutory law on religious freedom in the military supports a strong and robust free exercise of religion.

Supreme Court Provides Relief to Several Pennsylvania Charities from Obamacare Contraceptive Mandate

by Chris Gacek

July 1, 2015

Well, there has been a little bit of good news today in an Obamacare contraceptive case involving non-profits.  According the Becket Fund’s webpage, the Supreme Court “granted relief in Zubik v. Burwell to a group of Pennsylvania-based religious organizations, including Catholic Charities and other social service organizations.”  “The Court stated that the federal government is “enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.”

This is not a final win on the merits of the case, but it is a very positive signal.

Increasing the Child Tax Credit: Good for Families, Good for the Economy

by Rob Schwarzwalder

June 30, 2015

Senators Marco Rubio (R-FL) and Mike Lee (R-UT) have introduced a pro-growth economic plan that includes an increase in the child care tax credit, and the Wall Street Journal isn’t happy about it. In fact, the normally prudent Journal even goes so far as to assert that the child tax credit “does nothing for economic growth.”

Oh, c’mon: Let’s assume that the money retained by families through an expanded credit, per Rubio-Lee, in fact does not foster immediate growth. This is a dubious argument. Personal income tax cuts spur growth just as do corporate income tax cuts.

However, let us agree, for the sake of argument, that the child tax credit is deficient in animating the kind of sustained growth serious people want for the economy. It has another, more profound benefit that the Journal ignores completely: It strengthens families. And strong families mean a stronger economy.

Productivity increases when an adequate number of people are employed using their skills, capacities, and know-how to provide quality and affordable goods and services. Development of these capacities comes heavily from personal formation within the family. As Nobel Prize-winning economist Gary Becker argued, healthy, educated, and emotionally stable children are essential to economic growth.

So, in targeting family formation through enabling mothers and fathers to better provide for their children and also to bear and raise more children, something demonstrably needed for the economy of the United States given our looming demographic deficit, the Rubio-Lee proposal would substantially abet growth in coming decades. Its facilitation of growth over time is an investment that will bear fruit in a steadily more robust economy.

The immediate costs of child-rearing are such that extra money to help families pay for the enhancement of their most fundamental “investments” – their boys and girls – is laudable.

Regrettably, the Journal has shown a considerable lack of economic common sense in attacking a proposal that would bolster our human capital capacity. FRC applauds Sens. Rubio and Lee for their foresight and justified consideration of family well-being.

Earlier in his career, Schwarzwalder was Director of Corporate Communications at the National Association of Manufacturers.

GOP Reiterates Support for Marriage, Post-SCOTUS

by Suzanne Bowdey

June 30, 2015

House Leadership

Speaker Boehner

Whip Scalise 

 

VAT House Leadership

Chairman Joe Pitts

Chairman John Fleming

Chairwoman Vicky Hartzler

 

VAT Senate Leadership

Sen. Blunt—“I’m disappointed in this decision.  My view is that family issues in Missouri like marriage, divorce, and adoption should be decided by the people of Missouri.” 

Sen. Ernst—”I am disappointed by the Supreme Court’s decision and its failure to recognize the freedom of our states to make their own decisions about their respective marriage laws.  While it is my personal belief that marriage is between one man and one woman, I maintain that this is an issue best handled at the state level.”

Sen. Scott—“I continue to believe that marriage is between one man and one woman. The Supreme Court’s overreach into decisions that should be made by states and the people living and voting in them is disappointing. Moving forward, we must ensure families and religious institutions across America are not punished for exercising their right to their own personal beliefs regarding the traditional definition of marriage.” 

 

House Members

Rep. Aderholt

Rep. Babin

Rep. Barr

Rep. Black

Rep. Blackburn

Rep. Bost

Rep. Boustany

Rep. Brady (TX-08)

Rep. Byrne

Rep. Carter

Rep. Coffman

Rep. Culberson

Rep. Flores 

Rep. Forbes

Rep. Fortenberry

Rep. Foxx

Rep. Gohmert

Rep. Goodlatte

Rep. Griffith

Rep. Grothman

Rep. Hensarling

Rep. Huelskamp

Rep. Johnson (OH-6)

Rep. Jordan

Rep. Kelly

Rep. King (IA-04)

Rep. Labrador

Rep. Lamborn

Rep. Long

Rep. Marchant

Rep. Mullin

Rep. Olsen

Rep. Palazzo

Rep. Palmer 

Rep. Price

Rep. Ratcliffe

Rep. Smith (TX-21)

Rep. Smith (MO-08)

Rep. Stewart

Rep. Tiberi

Rep. Walberg

Rep. Walker

Rep. Weber

Rep. Westmoreland

Rep. Williams

Rep. Womack

Rep. Woodall

Rep. Yoho

 

Senate

Sen. Alexander

Sen. Ayotte

Sen. Capito

Sen. Coats

Sen. Daines

Sen. Grassley

Sen. Fischer

Sen. Hatch

Sen. Heller

Sen. Inhofe

Sen. Lankford

Sen. Lee

Sen. McCain

Sen. Rubio

Sen. Sasse

Sen. Sessions

Sen. Wicker

 

Presidential Candidates

Bush

Carson

Christie

Cruz

Fiorina

Graham

Huckabee

Jindal

Paul

Perry

Santorum

Walker

Supreme Chaos

by Rob Schwarzwalder

June 30, 2015

Last week, the Supreme Court overturned the votes of more than 50 million people in 31 states concerning same-sex marriage, finding, instead, a constitutional “right” for same-gendered persons to marry. They blithely dismissed the will of the voters in order to find this “right,” rejecting the Tenth Amendment’s affirmation that those things not specifically articulated in the Constitution as within the province of the federal government belong to the states and the people.

In a ruling on the shaping of congressional districts, issued today, Justice Ruth Bader Ginsburg – a leading advocate of a constitutional “right” for same-sex partners to marry – wrote the following: “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”

Affirming federalism is not a matter of whim; it is foundational to our system of government, even our existence as a nation. Yet, troublingly, this subjective application of the Founder’s political philosophy seems to be the pattern of our current Supreme Court.

Internal Chinese Populations

by Chris Gacek

June 29, 2015

China is now a world power, and we at the Family Research Council have commented on the brutality and inhumanity of its “one child” policy for years.  An excellent, recent article made clear that China’s severe population control policies exist on many levels – not just abortion.  Their harshness, however, puts the forced abortion diktat in a broader context of disregard for human beings.

The important Weekend Financial Times article (4/30/2015) by Jamil Anderline entitled, “China’s Great Migration.”  The focus of the story is a woman named Xiang Ju and the trek she makes from [x] to her rural homeland in China to celebrate the Chinese lunar New Year.  Along the way, Anderline fills in some basic facts about Chinese life – that are unknown to almost all Americans (I believe):

Not that Xiang Ju cares. She is about to join an annual ritual that is not only the biggest human migration but probably the biggest mammalian migration on earth each year. In 2015, an estimated 170 million people caught trains or flights out of China’s biggest cities heading home for the lunar New Year. The government counted about 3 billion “passenger trips” nationwide during the 40-day travel rush, including cars and buses.

Like Xiang Ju, most of these people were born and raised as peasant farmers in the countryside and later moved to China’s megacities to work in low-paid manufacturing, construction and service jobs. In 1978, on the eve of economic reforms that first unleashed this flood of humanity, less than 20 per cent of China’s population lived in a city. Today, 55 per cent of people in the world’s most populous country live in urban areas.

But about 275 million, or more than a third of China’s entire labour force, are migrant workers from the countryside, without the right to settle permanently or access the education, pensions or healthcare provided to those with hereditary “urban” status.

That last paragraph is stunning.  A population approaching 300 million constitute internal Chinese migrants who, merely because the moved out of the countryside, have limited access to numerous social services in some sort of irrational federalism.  Furthermore, they are not entitled to live in their new home cities.

And, at the other end of the spectrum, there is the phenomena of “hot money” by Chinese super-elites buying overseas real estate, including the U.S., as fear of the Xi government’s crackdown grows.  Go to the podcast page, and start listening at 19:00 (Jamil Anderlini / FT.com interview by John Batchelor and Gordon Chang).  Apparently, having more children than is allowed by the government is a status symbol among the Chinese elites who maintain overseas residences.

Overview of Obergefell v. Hodges: Supreme Court Discards Voters’ Views on Marriage

by Travis Weber

June 26, 2015

In a 5-4 opinion, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize licenses issued by other states. The decision was based on the due process and equal protection provisions of the Fourteenth Amendment.

There are two over-arching errors in this decision.

First, in reading this right into the Constitution, the Court played social policy maker instead of judge. This issue should have been left to the states, but the Court chose instead to make extensive pronouncements of social policy and create a right to same sex marriage under the Constitution.

Second, the Court overlooks huge logical gaps throughout its use of precedent and case law. All of the marriage decisions the majority relies on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To claim all those decisions contemplated such relationships as constitutionally protected marriages is an incredible leap in legal reasoning. However, it is more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (Justice Kennedy stated the institution of marriage “has evolved over time). The Court arrives at its conclusion here by viewing marriage as simply whatever man says it is; once its reasoning is divorced from God’s authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.

If there is a silver lining to the ruling, it is that because this ruling is heavily based on due process grounds, and focused less on equal protection (and avoiding animus entirely), there could be more leeway to protect religious freedom when regulating matters related to same sex marriage.

Majority Opinion

In the majority opinion, authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court relies on its own view and judgment of the history of marriage, along with legal validation of gay rights in Bowers and Lawrence, and subsequent more recent cases, as purported precedent for its decision.

In an attempt to legitimize its reasoning and conclusions, the Court makes many social science pronouncements on marriage—such as “new insights have strengthened, not weakened, the institution of marriage” and “many persons did not deem homosexuals to have dignity in their own distinct identity.” Regardless of their accuracy, the Court has no authority or expertise to make such claims.

At one point, Justice Kennedy claims the petitioners did not intend to denigrate natural marriage. The problem is, whether they intend to or not, disrupting marriage as God intends it will eventually lead to its destruction.

Due Process

The Court first held that Fourteenth Amendment substantive due process protections required states to license same-sex marriage. In the Court’s view, this right extends to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Which rights are protected by substantive due process “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect… . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.”

The Court starts by recognizing that it has long protected the “right to marry”—relying on rulings in the racial, child support, and prison contexts. The Court recognized that none of these dealt with same sex marriage, and attempts to excuse itself: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”

At one point (which is lacking airtight reasoning), the Court basically acknowledges it is recognizing this right for the first time—yet marginalizes Glucksburg, the case governing recognition of due process rights—and proceeds to rely on four reasons for doing so:

(1)   “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy” (citing the racial, child support, and prison context). “Choices about marriage shape an individual’s destiny.” “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

(2)   Relying on Griswold, the Court claims: “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”

(3)   “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

(4)   “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

Ironically, Justice Kennedy’s third point is precisely why children need a mom and a dad. The Court here relies on Pierce, a case which by no means contemplated that marriage could be anything other. And his fourth point is exactly why marriage is between a man and a woman. Calling it anything other reveals how when officials (including judges) depart from an understanding of what higher law and natural law say about mankind, their reasoning goes astray.

Throughout the majority opinion, the Court makes social pronouncements it has no authority to make. And none of the cases it relies on ever contemplated that marriage could be anything but between a man and a woman. Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ Marriage, the Maynard Court said, has long been ‘a great public institution, giving character to our whole civil polity.’”

Does Justice Kennedy sincerely believe that the Maynard Court, which he quotes, contemplated its holding as applying to marriages besides those between men and women? Or that that Court would view such marriages as helpful to the “social order?” Yet he proceeds to claim “[t]here is no difference between same- and opposite-sex couples with respect to [the] principle” that marriage plays an important part in the “social order.”

Equal Protection

The Court next held that the state laws at issue also violated the Fourteenth Amendment’s equal protection provision. In its earlier marriage cases, the Court asserts, equal protection and due process grounds had been intertwined. The Court attempts to show that due process and equal protection also intertwine to protect same sex marriage in this case. The equal protection grounds are less clear and do not feature as prominently as the due process arguments in the majority opinion. At this point, the Court also expressly overruled Baker.

In his opinion, Justice Kennedy acknowledged his recent pro-democracy thinking in Schuette, but (unfortunately) did not decide to heed it:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id.,at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id.,at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”

Why, then, did Justice Kennedy decide as he did here? In essence, he appears to feel differently about private sexual matters compared to other issues; this is evident in his consideration of Bowers and Lawrence, which he discusses here. Thus, the Court denied its own reasoning (indeed, Justice Kennedy denied his own reasoning) from the Schuette case.

Justice Kennedy decides that same sex marriage will not harm natural marriage, and ends with another policy pronouncement:

Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court concludes that its reasoning requiring states to license same sex marriages would undermine any opposition to recognizing such marriages from out of state. Thus, the Court held that states must issue same sex marriage licenses and must recognize same sex marriages performed in other states.

Here, the Court’s thinking again reveals an approach to marriage that only appears more logical (if at all) when God is removed from the picture, and is evidenced by such statements as: “It would misunderstand these men and women [the petitioners] to say they disrespect the idea of marriage.” Unfortunately, the truth that this reasoning harms marriage by removing its Author from the picture whether or not people intend to was missed here.

The Court does briefly address religious liberty concerns:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

While this recognition of religious liberty protections is better than nothing, it does not accurately capture a satisfactory vision of how religious liberty should be (or even currently is) constitutionally or statutorily protected. Several dissenting Justices make similar observations.

Dissenting Opinion by Chief Justice Roberts

Chief Justice Roberts wrote a dissenting opinion (joined by Justices Scalia and Thomas), noting that the majority ruling was a policy decision, not a legal decision. He observes that the changes in marriage laws over time (while changing the regulation of marriage in some respects) did not, as the majority claims, alter the “structure” of marriage as between a man and a woman.

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”

He aptly pointed to Dred Scott as an example of when the Court’s view on substantive due process got out of hand and is now viewed with distain many years later.

The Chief also recognizes that the majority’s claim that marriage is restricted to “two” people just can’t logically hold up under its own reasoning, and could easily be extended to plural marriage:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

He continues:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”

Chief Justice Roberts then quotes Schuette, and notes that although there is still a losing side in a democratic debate, at least those people will know “that they have had their say,” unlike here, where the court has disenfranchised over 50 million Americans.

He also recognizes religious liberty issues which may arise:

Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage… . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”

There is more:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

The Chief then takes issue with the majority’s statement that laws supporting natural marriage are demeaning; he does not like the majority’s implication that those supporting such laws wish to demean anyone. He concludes that “while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”

Dissenting Opinion by Justice Scalia

Justice Scalia also dissents (joined by Justice Thomas) and accuses the majority of legislating, not judging.

He aptly points out that the Windsor majority blatantly contradicts itself today:

It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

Justice Scalia concludes with a warning:

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.”

Dissenting Opinion by Justice Thomas

Justice Thomas also dissents (joined by Justice Scalia), noting the danger (as evidenced today) of substantive due process doctrine—by which rights “come into being” under the Fourteenth Amendment. He argues the Framers recognized no “right” to have the state recognize same sex relationships; there is no liberty to government benefits, just liberty from adverse government action.

He continued by focusing on the threat to religious liberty this decision represents, recognizing that while this ruling may change governmental recognition of marriage, it “cannot change” the religious nature of marriage. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

Justice Thomas also points out the problems with the majority’s conception of religious liberty:

Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ … Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”

Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”

Dissenting Opinion by Justice Alito

Justice Alito also dissented (joined by Justices Scalia and Thomas), arguing that the Court’s decision is based on a flawed understanding of what marriage is, and that it takes the decision out of the hands of the people who have the authority to decide it.

He also believes this decision threatens religious liberty:

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women… . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected… . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Justice Alito recognizes that the Court now makes it impossible for states to consider how to legislatively protect conscience rights should they want to do that while at the same time legislatively authorizing same sex marriage.

He concludes:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.”

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