Justice Kennedy Denies Request to Halt Gay Marriages in California

Photo Credit: AP

Photo Credit: AP

Supreme Court Justice Anthony Kennedy has denied an emergency request by opponents of same-sex marriage to halt gay weddings in California.

The decision means same-sex marriages can resume in the state. Gay marriage foes had filed the motion Saturday asking the high court to step in, less than 24 hours after the state started issuing marriage licenses to same-sex couples in the wake of a Supreme Court ruling earlier in the week.

That ruling, on California’s Proposition 8 gay marriage ban, was expected to clear the way for the state to resume issuing gay marriage licenses.

But in their filing, attorneys with the Arizona-based group Alliance Defending Freedom argued that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed gay marriage to resume by lifting a hold it had placed on same-sex unions amid the lawsuit.

“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay … is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the application states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”

Read more from this story HERE.

My Verdict: Obamacare UNCONSTITUTIONAL!

Today’s shocking Obamacare decision caused me to reminisce about my time on the federal bench ten years ago.  When I was a United States Magistrate Judge, I took the same oath of office that every federal judge and justice in the country swears to.  I swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same. . .”

That oath is anchored to the phrase, “Constitution of the United States.”  If the Constitution changes over time by an activist majority of the Supreme Court, then my oath was essentially an oath to the Supreme Court, not to the Constitution.  Of course, that’s not what the Founders intended.  The Supreme Court was never designed to be the pinnacle of federal power.

But that’s where we are today.  Chief Justice John Roberts, appointed by President George W. Bush in 2005, wrote the 5-4 opinion saving Obamacare and causing President Obama to declare “victory” and pundits to say that his administration has been “vindicated.”  Incredibly, Roberts determined that the government, under its taxing power, has the right to “impos[e] a tax on those who do not buy [a] product,” in this case, health insurance.*

From the bench today, Justice Kennedy issued a scathing denuciation of Robert’s reconstruction of Obamacare:  “The majority rewrites the statute Congress wrote … What Congress called a penalty, the court calls a tax.”  He concluded, “The law is “invalid in its entirety.”

The chief justice’s rescue of the individual mandate is a massive expansion of federal power, now permitting the federal government to regulate, by taxation, its citizens’ “failure to act” or passivity.  I challenge you to go back to the first 150 years of U.S. jurisprudence and find any Supreme Court opinion that would suggest such a construction of Congress’s power to tax and spend under Article I, Section 8 of the Constitution.

In his powerful dissent, Justice Scalia agreed that this power grab was unconstitutional:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States.

And then the zinger:

Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal  Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

In other words, when the federal government is allowed to tax non-activity, what powers are left to the states and the people under the Ninth and Tenth Amendments?  Not much.

But even more basically, Roberts and the four more liberal members of the bench are all starting with the assumption that the federal government can tax and spend for things outside of its enumerated powers, misconstruing the “general welfare” clause of the Constitution.  James Madison apparently disagreed, suggesting the clause “amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section.”

Not anchoring the general welfare clause to the enumerated powers enables virtually unlimited federal spending/taxation power and is completely contrary to the whole nature of the Constitution: a document designed to restrain the federal government, retaining all unspecified powers to the states and people.

The Roberts decision reflects that any faith in the Supreme Court to solve our nation’s problems is misplaced.  We must engage like never before.  Reject the LSM, rely on solid Internet news sources, support a Tea Party congressional candidate, engage in vote integrity efforts, and reflect upon the moral crisis we’re facing.   A massive victory in November will put today’s defeat in the proper dustbin of history.  But unless we rapidly correct the downward spiral, there won’t be much left for future generations.


Author’s note:  To his credit, Chief Justice Roberts did reject the Commerce Clause as constitutional authority for Obamacare.