Category archives: The Courts

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.

Four Short Observations about Justice Kennedy’s Opinion on Same-Sex Unions

by Rob Schwarzwalder

June 26, 2015

Homosexuality is an “Immutable” Characteristic

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.  And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Opinion of the Court, p. 4

Wrong: Homosexuality is NOT an immutable characteristic.  This is documented copiously and is demonstrated anecdotally by everyone from Rosaria Butterfield to Chirlane McCray, the wife of New York Mayor Bill DeBlasio.

As reported in an amicus brief for the Family Research Council, an examination of just some of the complaints that have been brought to date challenging state marriage laws reveals that dozens of the plaintiffs seeking to marry someone of the same sex previously were married to someone of the opposite sex. Notwithstanding their (presumed) sexual orientation, they were issued a license to marry. It might be argued that at the time of their previous marriage, they were not homosexual. But that response creates a new problem. If they were heterosexual then, but are homosexual now, then their sexual orientation could not be said to be immutable. – FRC Senior Fellow Peter Sprigg, The Wrong Argument Against Traditional Marriage, April 27, 2015

Changing Understandings of Marriage”

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.  For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman … Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” Opinion of the Court, pp. 6-7

Wrong: The nature of marriage as the union of one man and one woman has never changed. Legal matters attendant to marriage (women’s property rights, arrangements by parents, etc.) have changed, but the nature of marriage has itself never changed.  Kennedy’s argument says, in essence, that because a car now has airbags, it should be called an airplane.  Incorrect: It remains a car, even if improvements have been made to its engine, its safety, etc.

These aspects of marriage—the complementarity of male and female, and the irreplaceable role of male-female relations in reproducing the human race—are part of the original order of creation, and are evident to all human beings from the enduring order of nature. These common elements of marriage are at the heart of our civil laws defining and regulating marriage. Therefore, people of all cultures and religions—including those who lack faith in God, Christ, or the Bible—are capable of participating in the institution of marriage. – Andreas Kostenberger, Ph.D., “The Bible’s Teaching on Marriage and Family”

Homosexuality is analogous to race

When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.  Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.  In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men’.” Opinion of the Court, p. 8

Wrong: Race is immutable and benign.  It is irrelevant to with one’s character or conduct.  Homosexuality is not immutable and those who practice same-sex intimacy are engaging in behavior that has intrinsic moral content.

One of the four criteria for defining a classification such as sexual orientation as suspect—which in turn subjects laws targeting that class of people to the highest burden of proof—is that the group in question share an immutable characteristic. The immutability of sexual orientation is hardly a settled matter—just ask Anne Heche (the former partner of celebrity and lesbian Ellen DeGeneres who has now affirmed her heterosexuality). - Margaret Talbot, “Is Sexuality Immutable?” The New Yorker, January 25, 2010

Marriage is a matter of “individual autonomy”

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Opinion of the Court, p. 13

Wrong: While individual autonomy in terms of “personal choice” is “inherent in the concept” of marriage, marriage is not strictly about personal volition.  It is a social institution designed for procreation and child-rearing in a complementary household in which a child benefits from the influence of differently-gendered parents.

Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a mother and a father. Redefining marriage does not simply expand the existing understanding of marriage; it rejects these truths. Marriage is society’s least restrictive means of ensuring the well-being of children. By encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role. The future of this country depends on the future of marriage. – Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It”, Heritage Foundation, March 11, 2013

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.”

Conservatives Committed to Preserving Traditional Marriage

by FRC Media Office

June 26, 2015

Today, Republican Study Committee (RSC) Chairman Bill Flores (R-TX) released the following statement in response to the U.S. Supreme Court’s ruling in Obergefell v. Hodges:
 
“Today the Supreme Court overstepped its authority in another unfortunate display of judicial activism. With the Constitution silent on the question of marriage, this issue should be decided by the American people – not an activist Court. Millions of Americans have voted to preserve traditional marriage, with the knowledge that moms and dads raising kids in a stable home is essential to healthy communities and a healthy nation. I remain committed to restoring the right of Americans to decide this question for themselves, at the ballot box or through their state legislature. The first step is protecting the rights of religious organizations and schools to live according to their beliefs without facing retribution from the federal government.” 

Senate Values Action Team Responds to SCOTUS Marriage Decision

by FRC Media Office

June 26, 2015

Senate Values Action Team:

In response to today’s Supreme Court decision in Obergefell v. Hodges, please see Senate VAT leaders’ comments below:

Senator 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.”

Senator 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.”

Senator 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.”

Senator Lankford:  “I am disappointed with today’s ruling on marriage. During oral arguments the Court stated that there is a millennia of history for traditional marriage and that the issue has historically been decided by the people, not the courts. Two years ago, the Supreme Court even ruled that marriage policy is a state issue, but today they reversed themselves and redefined marriage over the objection of millions of people.   

Just like there remains a diversity of opinion on abortion, decades after Roe v. Wade, there will remain strong opinions on marriage long past today’s decision. Many Americans believe marriage is between a man and a woman, and we need to celebrate marriage as the best way to provide stability for children. For people who live by the clear teaching of many different faith traditions and people who simply believe in the sanctity of marriage, it is essential that their views are respected. As President Obama has said there are good people on both sides of the issue. After the ruling, the President was right to call the nation to respect and revere our nation’s ‘deep commitment to religious freedom.’ We should all be able to agree that everyone deserves the right to live out their religious convictions.

I believe each person is created in the image of God and has value and worth; every person should be respected. That belief defines my respect for people as individuals but it also sets a standard that will not change with a Supreme Court decision. Now the Courts will be required to also stand for the First Amendment of the Constitution and the faith traditions of millions of Americans.”

Justice Anthony Kennedy acknowledged the importance of religious freedom in the written decision. Kennedy wrote, “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.”

After the Supreme Court announcement during a press conference at the White House, President Obama said, “I know that Americans of good will continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcomed today’s news should be mindful of that fact. Recognize different viewpoints. Revere our deep commitment to religious freedom.”

Roberts Rules of Obamacare

by David Christensen

June 26, 2015

Justice Roberts’s majority opinion in King v. Burwell stretches the idea of textual interpretation well beyond the idea of using context to understand terms. He interpreted “Exchange established by a State” to mean “any Exchange” including a federally created one, but he did so not based on various other texts of the law, but what his understanding of the “purpose” of the law was. This is a blatant misuse of policy to interpret the text. In his first ruling on Obamacare, he interpreted “penalty” to mean “tax” even though both were clearly distinguished in the law. Now according to Roberts and the majority, “established by a State” means “established by a state or the federal government”. He concluded that Congress as a policy matter did not intend to restrict subsidies for health care plans in states created by the federal government since that would cause a “death spiral”. But why not interpret the policy decision, based on the text of the law, to have created an incentive for states to create their own exchanges? But those questions and the answers to them are matters of policy, not legal or textual interpretation. Roberts wanted to salvage Obamacare, and interpreted the law to fit his understanding of its policy goals. This ad hoc approach to textual interpretation undermines the idea that Roberts is conservative as it relates to his judicial mindset, but worse, how is Congress ever to draft legislation and pass laws when they themselves won’t know how the court will rule based on how they actually write the law? That’s quite a problem for the future of our democracy. Worth reading is the WSJ editorial “The Political John Roberts” pointing out that the Chief rewrote the law “in order to save it.”

Supreme Court Coddles Congress on Obamacare

by Travis Weber

June 25, 2015

In an opinion which deals a heavy blow to our foundational separation of powers, the Supreme Court ruled 6-3 today in King v. Burwell that the federal government could give out Affordable Care Act tax credits on its own health insurance exchange if a state did not set one up. Why? According to the Court, incredibly, the statutory term “established by the state” actually means “established by the state or the federal government.”

In the majority opinion, written by Chief Justice Roberts and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan opinion, the Court basically saves Congress from its own bad handiwork, scrutinizing and considering how the law would fail to work if it ruled on the plain meaning of the statute. In doing so, it illustrates how courts are not supposed to act — as legislator (considering the policy implications of a decision) as opposed to how they should — as judge (ruling on what the law means).

The trouble begins when the Court decides “established by the state” can’t just mean “state,” but must mean more given the “context and structure of the Act.” Because, in the Court’s view, this term has been deemed “ambiguous,” it is compelled “to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Once the provision is considered “ambiguous,” the Court is left free to jump through all sorts of hoops to reach its desired conclusion. It fruitlessly cautions: “Reliance on context and structure in statutory interpretation is a ‘subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.’” I don’t know how the Court has avoided doing that here.

The Court’s mental machinations continue; it claims that while “‘the presumption of consistent usage readily yields to context,’ … a statutory term may mean different things in different places.”

After declining to apply a method of statutory interpretation that says words should not be construed to be mere rhetorical surplus, the Court had to admit the ACA is the type of muddled mess that should have encouraged the Court to have less confidence in its ability to “figure it out” and instead send it back to Congress for fixing, noting that “with respect to this Act, rigorous application of the canon [against surplus words] does not seem a particularly useful guide to a fair construction of the statute.”

Why? Even the pro-ACA majority recognizes that “[t]he Affordable Care Act contains more than a few examples of inartful drafting… . Several features of the Act’s passage contributed to that unfortunate reality.” The majority further notes that the law “does not reflect the type of care and deliberation that one might expect of such significant legislation.”

However, as the dissent notes, the Court “has no free-floating power ‘to rescue Congress from its drafting errors.’” And “[l]aws often include unusual or mismatched provisions… . This Court ‘does not revise legislation … just because the text as written creates an apparent anomaly.’”

Much of what the Court does here is try to determine what Congress intended to do. Yet with a law containing such obvious, glaring problems and omissions, which we know Members of Congress did not even read, how can we even trust any guesses about what “Congress intended to do?” At one point, the majority cites an illustration “describing a cartoon in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’” This is a clear reference to former House Speaker Nancy Pelosi’s astonishing comment that Obamacare would have to be passed before what is in it could be determined. I’m not sure if the Court intended it, but the irony — and the jab at Mrs. Pelosi — are rich.

The silver lining of this decision is that it did not expand the administrative state through excessive deference to the IRS interpretation of “established by the state.” The not-so-silver lining is that the Court’s endorsement of mushy reasoning allows anyone and everyone (which includes the administrative state and courts) to play with statutory terms to make them mean what they want them to mean.

The Court properly claimed it had the authority to interpret the provision, but then improperly seized a different type of authority to “save” the law. The Court should have resisted the temptation to play the hero — in what would have been a noble exercise of self-limitation — and deflected the statute back to Congress for fixing.

There is also a subtle assumption of congressional incompetence in this ruling. So inept was Congress in drafting and passing this legislation that the Court had to assume an intent distinctly missing from the text presented to it for review. In doing so, the Court has de facto made law by defining terms comporting with the Court’s desire to save Congress from itself.

Thus, the problem now is that “context” means anything a court wants it to mean. And that’s not a power our Constitution intended courts to have. As the dissent says, if “all it takes to make something ambiguous” is reasoning like the majority’s, then “everything is ambiguous.”

The majority concludes that “[a] fair reading of legislation demands a fair understanding of the legislative plan.” Fair enough, perhaps. But even if one were to accept that assertion, I’m not sure how, in this case, which features one of the most muddled pieces of legislation in existence (which many Members of Congress have admitted they didn’t even read), there can be any understanding of any “legislative plan.”

Justice Scalia’s dissent, joined by Justices Alito and Thomas, has the better argument: “The Court has not come close to presenting the compelling contextual case necessary to justify departing from the ordinary meaning of the terms of the law.”

The majority’s “reasoning suffers from no shortage of flaws. To begin with, ‘even the most formidable argument concerning the statute’s purposes could not overcome the clarity [of] the statute’s text.’ … Statutory design and purpose matter only to the extent they help clarify an otherwise ambiguous provision.”

Exactly. And making such clarifications is exactly the job of Congress. The Court should have ruled based on the words of the statute. If Congress disagreed with the result and wanted it fixed, it would have then had the opportunity to fix the ACA.

As the dissent points out, if the majority’s concern about potentially dooming the ACA is valid, then “these projections would show only that the statutory scheme contains a flaw; they would not show that the statute means the opposite of what it says.” Moreover, “[h]ow could the Court pronounce it ‘implausible’ for Congress to have tolerated [the same] instability in insurance markets in States with federal Exchanges … when even the Government maintained until recently that Congress did exactly that in American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands?”

The dissent nicely summed up the problems with this decision:

The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct… . [T]his Court ‘has no roving license … to disregard clear language simply on the view that … Congress ‘must have intended’ something broader.’ . . .

Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.’ It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.

Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges… The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude… . What a parody today’s decision makes of Hamilton’s assurances to the people of New York: ‘The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over … the purse; no direction … of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.’

The dissent points out that several years ago, the Court twisted the individual mandate (which imposes a penalty for volitional inaction) into the shape of a “tax” in order to save its constitutionality. It also “rewrote the law to withhold only the incremental funds associated with the Medicaid expansion” in order to save another provision’s constitutionality under the Spending Clause. Now, the Court believes the limitation regarding state exchanges “would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere.”

Such reasoning reveals the “discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” Such expansionary reading by the Supreme Court to save unprecedented and large-scale government initiatives harkens back to the New Deal era. While the ACA has multiple problematic implications for religious freedom, the Court got this decision wrong based on an improper understanding of its role and erroneous view of the separation of powers. These are constitutional issues with far reaching implications that go beyond religious freedom.

As Justice Scalia rightly observes: “We should start calling this law SCOTUScare.”

What the Supreme Court(s) Said About Marriage: Part 3 (Washington)

by Peter Sprigg

June 25, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).

Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).

The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:

 … the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.

Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:

 … [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”

What the Supreme Court(s) Said About Marriage: Part 2 (New York)

by Peter Sprigg

June 24, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 2 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971).

The next three feature decisions by the highest court in three liberal states—New York, Washington, and Maryland. Unlike the Minnesota decision, each of these was handed down within the last ten years. Each of these states has since redefined marriage, but they have done so through the democratic process, not through judicial fiat. The U.S. Supreme Court should allow the same privilege to other states—the eleven which has chosen democratically to change their definition of marriage, and the thirty which have put a one-man-one-woman marriage definition in their state constitutions.

In Hernandez v Robles in 2006, the Court of Appeals of New York (the state’s highest court) addressed the rational basis which supports the definition of marriage as the union of a man and a woman (citations abbreviated):

The critical question is whether a rational legislature could decide that these benefits [of civil marriage] should be given to members of opposite-sex couples, but not same-sex couples… . We conclude … that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It could thus choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unsatable relationships between people of the opposite sex present a greater danger than children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.

Later in its opinion, the New York court responded to the chief argument made against its conclusion that a one-man-one-woman marriage definition is rationally related to concerns about procreation and child-rearing:

Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the procreation of children, the category of those permitted to marry—opposite-sex couples—is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State’s classifications. Indeed, it is “a paradigm of judicial restraint” (Affronti v Crosson, New York, 2001). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

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