Category archives: The Courts

Meddling Freedom From Religion Foundation Gets Tossed Out of Court

by Travis Weber

November 14, 2014

Thankfully, the U.S. Court of Appeals for the 7th Circuit, in Freedom from Religion Foundation v. Lew, refused to let stand a decision which had declared the clergy housing tax allowance unconstitutional.

This case began when the Freedom from Religion Foundation (FFRF) sued the U.S. government alleging that the government grants tax benefits based on religion. In a quite ill-advised lower court ruling, U.S. District Judge Barbara Crabb held that the FFRF could properly bring the lawsuit and that the tax allowance violated the Constitution. The case was then appealed to the 7th Circuit.

To understand how ridiculous the FFRF’s claim is, we must understand a little bit about the doctrine of “standing” to bring a lawsuit in federal court.

As the 7th Circuit explained, to bring a lawsuit, a party must show:

(1) they were injured in a concrete and personal way,

(2) that the injury can be fairly traced to the defendant’s action, and

(3) that the injury is likely to be remedied by a favorable judicial decision.

In addition, the court explained, merely being offended at the government’s action does not give one grounds to sue. Obviously, the fact that an atheist group is upset at other religious entities getting some tax relief for their ministers does not “injure” the atheist group at all. There is simply no personal injury present.

The 7th Circuit agreed, noting that the FFRF could not be injured by being denied any such tax exemption because the group never even asked for it.

The court also noted the FFRF’s own difficulty in arguing for liberal standing rules – almost anyone would have standing to sue for virtually any reason! This would result in over-clogged and over-worked federal courts, which, as they sift through heaps of frivolous suits, would have to take time away from truly meritorious suits where parties have been actually injured. To say this would be an injustice is an understatement.

The 7th Circuit concluded as follows:

To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption be-cause they have never requested it; therefore, they have suffered no injury.”

Nevertheless, it’s troubling to think the FFRF’s claims could even be considered more seriously had it asked for and been denied the exemption. Such a possibly should serve to highlight the way the suppressors of any religious expression in public life manipulate our legal system in wasteful and unproductive ways.

The FFRF has hardly been “injured” here by any reasonable understanding of that term. Courts should take note of this when the FFRF is back before another judge claiming some other mental or psychological “injury.”

U.S. Court of Appeals for the Sixth Circuit: Upholding marriage and democracy

by Travis Weber

November 7, 2014

On November 6, 2014, the U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, held that the marriage laws of Kentucky, Michigan, Ohio, and Tennessee do not violate the federal Constitution.

The opinion is a model of judicial restraint. Judge Sutton declared that states may see fit to legalize same-sex marriage, as multiple states already have, but that decision is to be left to the people of the states; the Constitution does not permit a “poll” of federal judges about “whether gay marriage is a good idea.”

A number of arguments were raised by the challengers of the marriage laws. Judge Sutton confronted all of them, and methodically explained why they are each insufficient to entitle the challengers to relief.

The 6th Circuit is simply following precedent, which it is required to do

The Court first explained that its position as an intermediate court requires it to follow on-point precedent, which is readily available in the case of Baker v. Nelson. Even in light of Loving v. Virginia (which had been decided four years previous to Baker), the Minnesota Supreme Court in Baker held that there was no federal constitutional right to same-sex marriage, for “‘in commonsense and in a constitutional sense … there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.’” The losing party appealed to the Supreme Court, but the Court dismissed the constitutional same-sex marriage claim, thus establishing Supreme Court precedent binding the 6th Circuit in this case.

Neither does United States v. Windsor change the calculus, for Windsor and Baker dealt with different issues. As for the argument that Windsor and other cases constitute a “doctrinal development,” Judge Sutton relies on the explicit instruction of the Supreme Court in other cases to conclude, quite reasonably, that Supreme Court precedents (which include Baker) must be followed until the Supreme Court makes clear otherwise. Unless the Supreme Court expressly overrules Baker by name, or by outcome, the 6th Circuit is bound by it. In addition, Judge Sutton clearly repudiated the notion that Windsor controls the present question somehow – noting that Windsor did not decide whether there was a constitutional right to same-sex marriage.

This type of solid logic is great to see; and shows that judges who have ruled otherwise have recklessly picked their favorite cases and twisted them to fit a favorable narrative. These other rulings finding a federal right to same-sex “marriage” have torn logic from its moorings; this is all the more apparent when contrasted with Judge Sutton’s solid logic here.

Baker independently provides grounds to conclude there is no constitutional rights claim to same-sex marriage, but Judge Sutton continues to address the remainder of challengers’ arguments nevertheless.

The original meaning of the Constitution does not offer support for same-sex marriage

Considering that the Constitution is an agreement between the people of the United States and the political leaders entrusted to govern them, Judge Sutton noted, its terms can only be changed with the consent of the people. For this reason also, clarity in interpretation and understanding are all the more important. There is no clear provision or understanding of the Constitution’s terms conferring a right to same-sex marriage. The Supreme Court also clearly looks to long-established historical track records of how constitutional provisions are to be interpreted – as revealed by precedent on a number of different constitutional provisions. Therefore, with this understanding, states are permitted, but not required, to legally allow marriage between members of the same-sex. If lawyers still invoke the original meaning of the Magna Carta, is it too much to ask that the original meaning of the Constitution (which, as Judge Sutton noted, no party to the case has suggested permits same-sex marriage) be respected? Indeed, it is not. Judge Sutton concluded that the original meaning of the Constitution and the historical record of what it permits does not reveal any constitutional right to same-sex marriage.

The state marriage laws meet rational basis review

Judge Sutton next concluded that the state marriage laws at issue meet rational basis review, which is satisfied as long as there is “any plausible reason” for the laws. Indeed, “[a] dose of humility makes” the Court “hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The Court noted it is clearly rational for the state to want to regulate the effects of sexual activity – which raises very important questions such as who is responsible for children produced by sexual activity, how many mates a person may have, and who is responsible for children which one or more of the partners helped to produce. The fact “[t]hat we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.” This alone is evidence of the rational basis of such laws. Moreover, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges,” Judge Sutton concluded. “By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality.”

It is also clearly rational for the states to want to wait and see what happens as a result of the legalization of same-sex marriage before changing their own laws on a norm which has existed for centuries. Developments in the United States on this issue have been rapid-fire, and yet at the same time, many states have simply left in place the norms to which they have always held. This is certainly rational, for “[a] Burkean sense of caution does not violate the Fourteenth Amendment.”

Either of these two grounds would independently satisfy rational basis review. Yet even the challengers’ own “love-and-commitment” definition of marriage would fail under their view of rational basis review. For no state requires couples, whether gay or straight, to be in love. Yet on the other hand, their definition fails to account for plural marriages, for there is “no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.” The Court proclaimed, “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” Judge Sutton noted that the challengers “have no answer” on this point. Yet “[w]hat they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.

Judicial deference to the people is a serious issue under rational basis review. Indeed, as Judge Sutton noted, the Supreme Court has held that a “State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?”

Ultimately, rational basis review is clearly satisfied here because either the regulation of sexual activity or a decision to proceed with caution on marriage laws would satisfy the constitutional standard. Thus the Court could dispose of the case at this point. But Judge Sutton continues to address the many arguments raised by the challengers – who no doubt are hoping that one of them would stick.

The voters in the states cannot be painted with the broad brush of “animus”

Judge Sutton next dismissed the idea that the state marriage laws are driven by animus, noting that the laws (which there are plenty of legitimate reasons to support) merely hold in place norms which have been around for the entire history of civilization. As the Court noted, “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.” How could the voters be blamed for feeling this way, when judges around the country were starting to strike down these laws out of the blue? It was at this time that voters decided to codify these long-held traditions in law – an act which the Supreme Court itself affirmed to be their prerogative to decide sensitive public policy issue in Schuette v. Coalition to Defend Affirmative Action. Painting the voters of the states with the broad brush of animus is “no less unfair” than portraying all supporters of same-sex marriage as intent on destroying American families to the core. Thus the idea that animus has driven state marriage laws, and that this serves as a reason to find them unconstitutional, fails entirely.

There is no fundamental right to same-sex marriage in the Constitution

The Court next tackled the question of whether there was a fundamental right to same-sex marriage, beginning by noting that it does not appear explicitly in the Constitution, and next by finding it is not historically “deeply rooted” as necessary to “ordered liberty.” Loving does not support the idea that this right historically existed. Loving did not use the term “opposite-sex” marriage, but that would have been redundant. For in Loving the Court proclaimed that marriage was “fundamental to our very existence and survival” – referring to the procreative aspect of marriage. Judge Sutton reasoned:

Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.”

Neither do Zablocki v. Redhail or Turner v. Safley supporter the challengers’ claim here, for “[i]t strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

Judge Sutton also noted that the Supreme Court has chosen not to subject laws regulating other aspects of marriage – such as divorce laws, polygamy laws, and laws regulating the age and familial status of those entering marriage – to strict scrutiny. As is the case with same-sex relationships, there are other areas of action intersecting with marriage laws which do not implicate fundamental rights subject to strict scrutiny.

In conclusion, there is no fundamental right to same-sex marriage – it is not mentioned in the Constitution, and cannot be recognized under the applicable legal standard.

Sexual orientation is not a “discrete and insular class without political power”

As the Court noted, rational basis review applies to sexual orientation classifications. The Supreme Court has never held that heightened review applies, and has not recognized a new suspect class in over four decades. Windsor does not support any contrary conclusion; rather, Windsor overwhelmingly supports the conclusion that marriage law and policy is to be left in the hands of the states. If it wasn’t clear enough, Judge Sutton emphasized the point again: Windsor does not support a federal constitutional right to same-sex marriage – any other reading “would require us to subtract key passages from the opinion and add an inverted holding.” Thus there is no heightened review applied in this case.

The notion of “evolving meaning” cannot support the legalization of same-sex marriage

Even if changing mores are examined for whether they can support new judicial decision-making, they do not support the idea that laws upholding natural marriage must be struck down. Such considerations are dependent on society’s values (not judges’ values), and thirty-one states would continue to permit only natural marriage if given the choice. If the “pacing” of the change of this issue in society is to be considered, and the challengers desire is to examine judicial decisions as part of this trend, what about the “pacing” of state legislatures’ decisions and the deference due to their interest in caution?

Moreover, even if international legal regimes are examined on this point, Judge Sutton observed that the great majority of countries have retained natural marriage. The European Court of Human Rights even held that European human rights laws do not guarantee a right of same-sex marriage. The Court makes a good point: “What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.”

In concluding this section of his opinion, Judge Sutton noted “[i]t is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” Indeed, even if evolving mores are considered, they do not support a wholesale forced acceptance of same-sex marriage.

For all these reasons, the marriage laws at issue in this case are perfectly constitutional.

The challengers had also argued, however, that state laws banning recognition of out-of-state marriages violated constitutional guarantees of equal protection and due process.

The Constitution does not require inter-state recognition of same-sex marriages

The Court stated that (as explained above) because states may constitutionally define marriage between men and women as they see fit within their borders, they may also constitutionally define how they will recognize out of state marriages. States have always decided how and when they will recognize other states’ laws based on choice of law doctrines. This situation is no different. Indeed, states already for a long time have refused to recognize invalid out of state marriages in other contexts – like incestuous or polygamous marriages, or others opposed to state law. States may decide what marriages to recognize as a matter of policy in those contexts, and this one is no different. If there is no constitutional right forcing a state to modify its own marriage laws, there is no constitutional right forcing a state to modify its laws regarding recognition of marriages performed in other states.

The challengers also argued that such bans violate the constitutional right to travel – which protects the right to leave and enter states, be welcomed, and, if a permanent resident, be treated like a citizen of the state. Yet, as the Court noted, state laws banning recognition of out of state marriage violate none of these rules. People can still move freely across boundaries, and are treated just like those inside the state who would violate the marriage laws. Thus, the right to travel does not require invalidation of state marriage laws on this point.

Conclusion

For all these reasons (explained above and summarized below), the Court held that state laws upholding natural marriage are fully legal and constitutional:

  • Baker requires that this Court dismiss the constitutional rights claims here.
  • Even if not dismissed, these laws meet rational basis review. There is no animus or suspect classification which would require any greater review.
  • There is also no fundamental right here – explicitly protected or deserving to be recognized.
  • There is no original meaning or “evolving meaning” support for a same-sex marriage right which would change any of the above analyses.
  • Additionally, no legal principle changes the constitutional calculus regarding laws pertaining to recognition of out-of-state marriages.

Judge Sutton reiterated one final time that such sensitive issues, especially when considering the abrupt timeline of change and legalization of same-sex marriage, should be left to the voters to decide. Only then can voters on both sides of the issue makes their voices heard in a manner befitting them as ultimate arbiters in a self-governing democracy, as opposed to making judges the “heroes” (or villains) they were never meant to be.

Dissent

Dissenting Judge Daughtrey repeats all the same arguments advanced by the challengers – arguments which have been repeated elsewhere by rogue judges striking down marriage laws. She accuses the majority of setting up a “false premise” of “who should decide” this issue – the voters or judges. Perhaps she is grasping at straws, for this is not a false premise at all, but a legitimate question that is actually before the court – whether there actually is a right to same-sex marriage at all – which, if absent, indeed permits the voters to decide. For much of her opinion, she spends time on items not even central to the legal issues – she discusses the various factual scenarios of the challengers’ lives, then takes shots at the expert testimony offered by the defending states (without equally scrutinizing plaintiffs’ experts), and finally simply recounts other recent circuit court rulings (which themselves have been crafted out of thin air in the past year with specious reasoning).

She fails to confront the precedential hurdles she faces in Baker (which have been discussed by the majority). She also fails to even examine the proper standard for rational basis review – whether there is “any plausible reason” for traditional marriage. Instead, she just skips the question, choosing instead to complain about the majority’s arguments without engaging them, and without applying the appropriate legal standard. For instance, at one point, she focuses on the level of difficulty of amending a state constitution – a question entirely irrelevant to the legal standard she is supposed to be considering.

She then claims the voters could be exhibiting “animus” if they have a “general, ephemeral distrust of, of discomfort with, a particular group.” Under that standard, we might as well be forced to legitimize virtually every behavior for which we currently incarcerate people.

It goes without saying further that the dissent is poorly constructed and lacks objectivity. That alone would be sufficient reason to criticize it; the cheap shots which she takes at the judges in the majority (and to some extent the voters) further discredit the dissent.

FRC Files Amicus Brief in Fifth Circuit Marriage Appeal

by Chris Gacek

November 3, 2014

Today, the Family Research Council filed an amicus, or “friend of the court,” brief in the case of Robicheaux v. Caldwell, an appeal of a marriage definition case arising out of Louisiana. On September 3rd, Judge Martin Feldman of the Eastern District of Louisiana issued a decision upholding the constitutionality of Louisiana’s male-female definition of marriage. Subsequently, the plaintiffs, seven same-sex couples, appealed to the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) in New Orleans. It was with the Fifth Circuit that FRC filed its amicus brief today. Paul Linton, a constitutional appellate lawyer from Illinois, wrote the brief. Mr. Linton has worked with FRC previously in numerous marriage-definition cases.

The FRC amicus brief focuses on two main arguments. First, the brief demonstrates that Louisiana’s marriage definition does not contravene the fundamental right to marry that is protected by the Due Process Clause of the U.S. Constitution. After the Supreme Court’s Windsor decision a number of federal courts have attempted to claim that there is a fundamental right to same-sex marriage. As an institution, same-sex marriage is younger than Google and Facebook. It cannot satisfy the requirement the Court laid down in Washington v. Glucksberg, 521 U.S. 702 (1997), that such rights must be firmly rooted in “the Nation’s history, legal traditions, and practices.”

Second, the brief makes clear that Louisiana’s marriage definition does not discriminate on the basis of sex or gender because males and females cannot marry members of the same sex. On the contrary, every male and every female may marry. The requirement, however, is that one’s marriage partner be a member of the opposite sex. There is no “facial” discrimination in Louisiana’s marriage definition that targets either males or females for worse treatment than member of the opposite sex.

Male-female marriage is the bedrock of social life and civilization. It is the institution by which the complementary sexual attractions of males and females are yoked together in an enduring, supportive relationship that has the potential to produce children. Same-sex unions can reproduce neither the relational nor the procreative capacity. As such, the union of one man and one woman for life in marriage is rationally related to these dual purposes.

7 Points of Reflection: Responding to the Houston Mayor’s Press Conference Announcing the Withdrawal of the Subpoenas Targeting the Five Houston Pastors

by Travis Weber

October 29, 2014
  1. The mayor says the subpoenas were “legal, valid, and appropriate,” but is withdrawing them anyway.

No, they are not legal, valid, and appropriate. They requested irrelevant and privileged material, and had the purpose of harassing the pastors – these very qualities make them quite inappropriate.

  1. She says it is “extremely important” to protect her special rights ordinance.

What about free speech rights so essential to open democracy and religious liberty rights protected by the First Amendment? She didn’t mention it was important to protect these.

  1. She claims the pastors she met with (who were not the subject of the subpoenas nor authorized to speak on behalf of those who were) didn’t plan a “rally” to “attack me” or the city.

While she tries to paint herself as above the political fray, she’s the one who invalidated the signatures. At its heart, this entire situation is a political matter. She tries to separate her subpoena withdrawal from the politics here, but she ultimately can’t do this. It comes down to this – if the pastors had been speaking for the bathroom bill instead of against it, she’d be fine with that. This IS about political intimidation – no matter how much she says it isn’t.

  1. She cares about “broader concerns” implicated here so she dropped the subpoenas.

What about the “concern” of Houston citizens being able to democratically repeal a law they don’t like? That seems pretty “broad” to me.

 

  1. She says she had a good conversation about “rendering unto Caesar” with the pastors she met with (who, again, are not even the pastors who were targeted by the mayor’s office).

This isn’t a determination for her to make. Ultimately, this entire situation arose because the Houston 5 have not rendered unto the City what the City would like for them to – their views on sexuality.

  1. She believes she has “removed that discussion about freedom of religion from the local arena.”

No, she hasn’t. She’d prefer that “religion” have nothing to say about the versions of sexuality protected by HERO – the very thing which is driving the lawsuit – which she has vowed to defend. Thus her logic defeats itself.

  1. She also became defensive when asked why she wouldn’t just allow the citizens to vote on repealing HERO. She was asked a question expressing concern that the Houston 5 may still feel intimidated.

She attempted an answer, but did so unsatisfactorily. If the mayor wants to clear up the intimidation issue, she can allow the citizens she was elected to represent to actually vote on whether to repeal the ordinance – it’s that simple.

Excerpts - Judge Upholds “Principles of Logic and Law” in Backing Natural Marriage in Puerto Rico

by Peter Sprigg

October 23, 2014

U. S. District Court Judge Juan M. Pérez-Giménez issued a ruling on October 21 upholding Puerto Rico’s law defining marriage:

Marriage is a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife . . .”

Pérez-Giménez, a Jimmy Carter appointee, was the second District Court judge to stand against the tide of judges who have asserted a constitutional right to “marry” someone of the same sex in the months since the June 2013 ruling of the Supreme Court in United States v. Windsor. (Windsor struck down the portion of the federal Defense of Marriage Act, or “DOMA” which defined marriage for all purposes of federal law as the union of one man and one woman.) Judge Martin L. C. Feldman upheld the Louisiana marriage law on September 3.

The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”

Following are some excerpts from the strong decision (some citations omitted):

The plaintiffs have brought this challenge alleging a violation of the federal constitution, so the first place to begin is with the text of the Constitution. The text of the Constitution, however, does not directly guarantee a right to same-gender marriage . . .

Without the direct guidance of the Constitution, the next source of authority is relevant Supreme Court precedent interpreting the Constitution. On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this Court.

The petitioners in Baker v. Nelson [1972] were two men who had been denied a license to marry each other. They argued that Minnesota’s statutory definition of marriage as an opposite-gender relationship violated due process and equal protection – just as the plaintiffs argue here. The Minnesota Supreme Court rejected the petitioners’ claim . . .

The petitioners’ appealed … The Supreme Court considered both claims and unanimously dismissed the petitioners’ appeal “for want of [a] substantial federal question.”

… The dismissal was a decision on the merits, and it bound all lower courts with regard to the issues presented and necessarily decided, Mandel v. Bradley, … (1977) . . .

This Court is bound by decisions of the Supreme Court that are directly on point; only the Supreme Court may exercise “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., … (1989). This is true even where other cases would seem to undermine the Supreme Court’s prior holdings. Agostini v. Felton, … (1997)(“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent…”). After all, the Supreme Court is perfectly capable of stating its intention to overrule a prior case. But absent an express statement saying as much, lower courts must do as precedent requires.

… The Supreme Court, of course, is free to overrule itself as it wishes. But unless and until it does, lower courts are bound by the Supreme Court’s summary decisions “‘until such time as the Court informs [them] that [they] are not.’” Hicks v. Miranda, … (1975) … .

The First Circuit expressly acknowledged – a mere two years ago – that Baker remains binding precedent “unless repudiated by subsequent Supreme Court precedent.” Massachusetts v. U.S. Dept. of Health and Human Services, … (1st Cir. 2012). According to the First Circuit, Baker prevents the adoption of arguments that “presume or rest on a constitutional right to same-sex marriage.”

. . .

Windsor does not – cannot – change things. Windsor struck down Section 3 of DOMA which imposed a federal definition of marriage, as an impermissible federal intrusion on state power. The Supreme Court’s understanding of the marital relation as “a virtually exclusive province of the States,” (quoting Sosna v. Iowa, … (1975)), led the Supreme Court to conclude that Congress exceeded its power when it refused to recognize state-sanctioned marriages.

The Windsor opinion did not create a fundamental right to same-gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question. Contrary to the plaintiffs’ contention, Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

. . .

Lower courts, then, do not have the option of departing from disfavored precedent under a nebulous “doctrinal developments” test. See National Foreign Trade Council v. Natsios, … (1st Cir. 1999) (“[D]ebate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion.”); see also, Scheiber v. Dolby Labs., Inc., … (7th Cir. 2002) (“[W]e have no authority to overrule a Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court’s current thinking the decision seems.”)(Op. of Posner, J.).

. . .

IVCONCLUSION

That this Court reaches its decision by embracing precedent may prove disappointing. But the role of precedent in our system of adjudication is not simply a matter of binding all succeeding generations to the decision that is first in time. Instead, stare decisis embodies continuity, certainly, but also limitation: there are some principles of logic and law that cannot be forgotten.

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution … inextricably linked to procreation and biological kinship,” Windsor, … (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? See Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 302, 303 (2010). It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds … Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.

Schuette v. Coalition to Defend Affirmative Action, … (2014)(Op. of Kennedy, J.).

For the foregoing reasons, we hereby GRANT the defendants’ motion to dismiss. The plaintiffs’ federal law claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 21st day of October, 2014.

S/ JUAN M. PÉREZ-GIMÉNEZ

JUAN M. PÉREZ-GIMÉNEZ

UNITED STATES DISTRICT JUDGE

Analyzing Tony Kennedy: My only Power Lunch

by Robert Morrison

October 8, 2014

Tony Kennedy had just been confirmed to a life appointment on the U.S. Supreme Court in late 1987 when I got an invitation to lunch from a lawyer in a well-respected Washington firm. John Connolly was a man I had never met. Mr. Connolly, I was informed, was Pat Buchanan’s brother-in-law. The message my assistant gave me was that this estimable gentleman just wanted to thank me for my efforts on behalf of Judge Robert Bork.

Earlier that year, we had been through a brutal confirmation battle. The good and decent Bob Bork, an eminent constitutional scholar, had been savagely attacked in the mass media.

Liberal activists had left no stone unturned or uncast in their hunt for anything to stop Judge Bork from being confirmed as President Reagan’s third Supreme Court nominee. They had failed to derail Chief Justice Rehnquist, though they slimed him. They never laid a glove on the beloved Justice Antonin Scalia. Everyone loves “Nino,” it seems.

But they were primed for Bob Bork. No sooner had President Reagan announced his choice on July 1, 1987 then Ted Kennedy burst onto the Senate floor with a scurrilous and scandalous attack. Thus was born “Borking.”His video rental records were ransacked by liberal activists — those famous advocates of privacy rights. Civil liberties proponents looked the other way as a Democratic senator demanded Judge Bork describe his religious beliefs while he was under oath.

I had prayed for Judge Bork. He was one of America’s most distinguished (Yale) professors of law and a most highly regarded judge on the U.S. Circuit Court of Appeals for the D.C. Circuit. Because he had criticized the Supreme Court’s ruling in the infamous Roe v. Wade case of 1973, Kennedy charged the judge with being anti-woman.

This was the first appearance of the “war on women” theme that liberals have been pushing. Ted Kennedy was a famous respecter of women, as all those whom he had pawed and preyed upon surely knew. In those years when he was posing as a champion of women, Kennedy and one of his Senate boys had even pursued women under the tables at one of Washington’s more fashionable eateries. I think it was a place called Mon Oncle, or some such.

Judge Bork had had to endure Ted Kennedy’s calculated rudeness as the Massachusetts lawmaker refused to call him anything but “Mr. Bork.” Bullying and berating, Ted grilled the judge about his ruling in an interstate trucking case.

I was in the Senate hearing room as Ted Kennedy, of all people in America, bored in on the fine points of interstate highway driving. Jimmy Carter’s campaigners had made sure in 1980 that all Americans knew that it was Kennedy who had abandoned a young woman to die of asphyxiation after he drove his car off a bridge at Chappaquiddick back in 1969.

I had hoped the Judge would stand up at the witness table and ask his Grand Inquisitor if it could be true: “Are you really questioning my judgment in a traffic safety case, Mr. Kennedy?” But the Judge was ever the gentleman and, like Aslan the Lion, he let himself be led to slaughter by these scampering tormentors.

The reward for my work was to be this “Power Lunch” with an honest Washington lawyer. I seem to recall it was the Occidental, at the Willard Hotel. I do not remember what I ordered for what was to be my only Power Lunch in thirty years, but I remember what Mr. Connolly taught me then.

Since deceased, this practiced Washington power attorney expanded on the choice of Supreme Court justices and what we as pro-life conservatives should seek in a nominee.

He had the highest praise for the recently-cast down Judge Bork. But he had this warning:

Bob Bork is so intelligent and so honest that he might have found a better constitutional basis for abortion. Remember, he told the Senate Judiciary Committee — under oath — that he had no opinion on abortion as such, he had merely done what many liberal constitutional scholars had done: He critiqued the Supreme Court’s reasoning in this case.

I knew John Connolly was right about those liberals who had criticized the opinion that Harry Blackmun had managed to cobble together with smelly gluepot and used string, rather like Mr. Dick’s Kite in Dickens’ David Copperfield.

Blackmun’s opinion was dismissed by a number of serious students of the Constitution, starting with Yale Law School’s John Hart Ely.

Ely was a famous constitutional law professor (and personally pro-abortion). Ely had said [Roe is] “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”

Then, there was this liberal’s analysis of Blackmun’s opinion in Roe that showed why even the liberal clerks at the Supreme Court were calling the ruling “Harry’s abortion.”

Archibald Cox’s liberal credentials could hardly have been better. He was virtually a legal advisor to the Kennedys. He had earned martyrdom among liberals when, as Independent Prosecutor in the Watergate Affair, he had been fired by then-Solicitor General Robert H. Bork. But even this distinguished Harvard Law professor dismantled Blackmun’s shoddy legal reasoning and even worse history:

Blackmun’s opinion, Cox wrote;

“fails even to consider what I would suppose to be the most important compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the center of Western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death.”

Cox further argued, as National Review publisher Jack Fowler tells us: “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion or new advances in providing for the separate existence of a fetus… . Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”

All of this was part of my post-confirmation luncheon and tutorial with John Connolly.

But then he went on to reassure me that it might all be for the best. “Bob Bork is a racehorse. We don’t need a justice on the Supreme Court who is a thoroughbred. We need a mule. We need someone like Tony Kennedy who will patiently pace along for twenty, thirty years. Just a mule who will pull the barge along the canal day in and day out. The U.S. Supreme Court is a dangerous place for someone like Bob Bork who views it as ‘an intellectual feast.’  Better an unimaginative plodder like Tony Kennedy. Better a mule than a racehorse.”

I learned a great deal in my Power Lunch with that good man, John Connolly. I wish he were still here. I would have pointed out to him the record of nearly thirty years of our “mule” on the Supreme Court.

The problem is this: When the mules get to the U.S. Supreme Court, they start thinking they are all racehorses. 

In the name of religious rights for prisoners

by Travis Weber

October 7, 2014

Today oral argument will be heard by the Supreme Court in Holt v. Hobbs, a case in which a Muslim prisoner is seeking to grow a ½ inch beard in compliance with his religious faith. The prison policy at issue actually permits ½ inch beards, but only for medical reasons. For this marginalization of his religion, Mr. Holt has sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and is asking the Court to apply strict scrutiny (the same high standard of protection for religious rights required by RFRA and affirmed by the Supreme Court in Hobby Lobby) and protect his religious rights in the face of a discriminatory prison policy.

Many see the importance of protecting religious rights for prisoners, including those who have personally benefitted and come to faith through access to religious programs in prison. My law school colleague Jesse Wiese, now advocating for prisoners at the Justice Fellowship, is one of these; he has written about his experiences in support of Mr. Holt’s religious claim in this case. A win for Mr. Holt under RLUIPA in this case will protect all prisoners, regardless of faith. Along with protecting a Muslim prisoner who wants to grow a beard to a reasonable length (in keeping with the prison’s need to maintain order and discipline), the application of strict scrutiny here will strengthen the law’s protections for Jewish prisoners seeking dress or grooming accommodations, or those seeking access to Bible studies in prison. As it is said, a win for religious freedom for one is a win for religious freedom for all.

Moreover, a win for Mr. Holt here will strengthen protections for religious exercise in public spaces in the United States, something that groups like the Freedom From Religion Foundation just can’t stand. Religion always has occupied a unique role in the public life of our country. We can expect the Supreme Court to again affirm that principle with a ruling for Mr. Holt in this case.

An Inescapable and Irrepressible Conflict

by Rob Schwarzwalder

October 6, 2014

The Supreme Court today has “turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others — but also leaving the issue unresolved nationally.” So now same-sex “marriage” is legal in 30 states plus D.C.

My boss Tony Perkins issued a thoughtful statement about the ruling earlier today. In part, he said, “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Sadly, he’s dead right.

There are a number of dimensions to this issue, one of which was articulated by Dr. Al Mohler of Southern Baptist Seminary in an article on September 24: Homosexuality is “now inescapable for every congregation, every denomination, every seminary, and every Christian organization. The question will be asked and some answer will be given. When the question is asked, any answer that is not completely consistent with the church’s historical understanding of sexual morality and the full affirmation of biblical authority will mean a full embrace of same-sex behaviors and same-sex relationships. There is no third way, and there never was.”

Two observations: First, Dr. Mohler is right with respect to the inevitability of division within the believing church over this issue. Christians will choose to be faithful to Scriptural teaching or they won’t. There is not, as he notes, nor will there ever be, any middle ground between obedience and submission to the revealed will of God and rebellion against it.

Second, I’m haunted by the memory of William Seward’s comment, immediately before the Civil War, that strife between North and South over slavery constituted “an irrepressible conflict.”

Millions of Americans simmer with resentment at the coerced redefinition of marriage the courts are imposing on them, despite referenda in dozens of states where they have affirmed the traditional definition of marriage quite explicitly. The Dred Scott decision did not decide the issue of human bondage. The Roe v. Wade decision has not decided the issue of abortion on demand. And the continued federal court confusion over same-sex unions only postpones a day of legal reckoning that could create a measure of civic sundering unwitnessed in our nation for decades.

Even if the Supreme Court has valid reasons for postponing their decision on this issue, postponement is not resolution. I fear that whatever decision the Supremes finally reach will not resolve it, either.

Supremes Dodge Most Important Issue Before Them — Marriage

by Peter Sprigg

October 6, 2014

The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.

There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.

This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.

The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.

Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.

One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.

FRC Files Amicus Brief in Reed v. Town of Gilbert

by Travis Weber

September 22, 2014

Today, Family Research Council filed an amicus brief with the U.S. Supreme Court in the case of Reed v. Town of Gilbert.

In this case, a Gilbert, Arizona sign ordinance discriminated against certain signs based on the content of the signs — whether they were political, ideological, and directional. Directional signs were placed under more severe restrictions.

A local church — Good News Community Church — and its pastor — Clyde Reed – needed to announce the times and locations of their services, but because their announcement signs (which directed individuals to a public school were services were being held) were deemed directional, the church was severely hampered in getting its message out.

Pastor Reed and Good News Community Church sued to vindicate their constitutional rights. The lower courts ruled against them, so they have now taken their case to the Supreme Court.

In our brief, filed in support of Pastor Reed and Good News Community Church, we argue that the town does regulate signs differently based on their content, for politics, ideology, and directions are all matters of differing content. Well-established Supreme Court jurisprudence bars content-based restrictions on speech unless the government can meet strict scrutiny — which says that unless the government regulation advances a compelling government interest, and this is done in the least restrictive way possible – the government regulation cannot stand. We conclude that because there are content-based restrictions on speech in this case, the Supreme Court should send this case back to the district court to determine if the town can meet strict scrutiny.

A win for Pastor Reed and Good News Community Church in this case will help advance a strong interpretation of First Amendment free speech rights, which is good not only for small congregations like Good News Community Church, but for all who wish to speak free from government interference. Ensuring an open marketplace of ideas in which all voices are protected and can speak freely is what the First Amendment is all about.

Our press release is here, and our brief can be read here.

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