Congressional Appropriations Power Could Stop Same-Sex “Marriage”

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If the U.S. Supreme Court rules that states must recognize so-called same-sex “marriage” does that mean that proponents of real marriage have only the remedy of a Constitutional Amendment to block the effects of such a decision? No! While some men and women of good will have claimed that an amendment to the federal Constitution is the only remedy available, they have not thought through the problems associated with such a strategy. History demonstrates that this strategy is only rarely successful. Only four Supreme Court decisions have ever been reversed by Constitutional Amendment since 1789. Moreover, Liberals, and faux conservatives who duck social issues, would love to send grassroots conservatives on a futile, wild goose chase in a multi-year pursuit of a Marriage Amendment to the U.S. Constitution.

There is another way. Congress can immediately take action on a strategy to block the Obama Administration’s implementation of the Court’s decision through the use of riders to appropriations bills which will come before Congress this summer and fall.

Suggested by James Madison, both liberals and conservatives have successfully used this strategy to change public policy over the past 50 years. This approach is constitutional. It can be set in motion within days, if not on the very day of a Supreme Court decision, should the anomaly of same-sex “marriages” be blessed by the highest court in the land. And, if pursued by defenders of real marriage, this approach will require every 2016 congressional and presidential candidate to take a position on marriage.

The Appropriations power of Congress can and must be used to block implementation of unlawful rulings by out-of-control federal judges. Members of Congress would simply attach amendments to pending Appropriations bills later this summer to prevent the Obama Administration from implementing any pro-same sex marriage decision.

Does Congress have this power? Yes!

The Constitution provides, that, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” Art. 1, Sect. 9.

James Madison noted, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Federalist 58. Every Appropriations bill consists of page after page of limitations, conditions, or prohibitions on how our federal tax dollars may be spent, if spent at all. Such money prohibitions which changed history include:

· The Vietnam War ended with the 1975 cut off of American military aid;

· Medicaid funding of abortion on demand was banned via the Hyde Amendment in 1976;

· Funds to assist anti-communists seeking to overthrow the Communist government in Angola in 1975-76 were prohibited;

· The implementation of a published IRS ruling under President Jimmy Carter which compelled private, predominantly Christian schools to prove they were not discriminating on the basis of race in order to keep their tax-exempt status in 1979 was blocked by an Appropriations Amendment from former Congressman Robert Dornan (R-CA); and

· Tax funds to assist Contra rebel groups to overthrow the Nicaraguan government were blocked in 1982.

Some may question if it is “constitutional” to prohibit spending money to implement same-sex “marriage” if the Supreme Court finds that the Constitution requires recognition of same-sex “marriage.” President Andrew Jackson answered that question in his 1832 veto message of the National Banking bill where he noted, “[t]he authority of the Supreme Court must not … be permitted to control the Congress or the Executive when acting in their legislative capacities.” President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832.

If the Supreme Court twists the Fourteenth Amendment, enacted after the shedding of blood of over a half a million Americans for equal rights for black Americans, into a mandate for same-sex “marriage,” the decision must be challenged immediately and effectively. Many millions of Americans who voted to support and adhere to the millennia old consensus on marriage must question the authority and judgment of the Court if it wrongly applies the Constitution, while arrogantly charging that Americans who disagree with them are bigoted and hateful.

Past Justices did not always claim such sweeping infallibility. Referring to past controversial decisions of the Supreme Court, Chief Justice Earl Warren (1953-1969) commented in 1962 on the World War II Japanese internment cases, that, “… the fact that the Court rules in a case like, Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.” Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 193 (1962), Reprinted in, The Air Force Law Review, Vol. 60, 2007, pp 16-17.

Providentially, I was involved in the initiation of (i) the successful Hyde Amendment relating to abortion, and (ii) the Dornan Appropriations Amendment blocking Jimmy Carter’s efforts to put private schools under the thumb of the IRS, on pain of losing their tax-exempt status. The stories of these two efforts is instructive as to the power that Congress has to fix such problems.

In the Spring of 1976, a friend provided me with the results of a FOIA request showing the Department of Health Education and Welfare (now HHS) had paid for roughly 300,000 Medicaid abortions. As a private citizen, I went to the U.S. Capitol and requested a Page to have Representative Bob Bauman (R-MD) come off the House Floor and meet me at the Cloakroom door. (Bauman and I were both active in the Young Americans for Freedom many years earlier.) I showed Congressman Bauman the FOIA documents and suggested that an amendment to the HEW Appropriations Act prohibiting the use of federal tax money for abortion would be in order. He said he knew a freshman Congressman who might be willing to offer the amendment cutting off all funding for elective abortions. That first term member of Congress turned out to be Representative Henry Hyde (R-IL). The abortion funding restriction — widely known as the Hyde Amendment — has passed Congress every year since 1976.

As a legislative assistant to Congressman Dornan, I worked with the late Jack Clayton of the National Association of Evangelical Schools to devise an amendment to protect private schools by adding a rider to a Treasury appropriations bill prohibiting the use of any federal money to implement the IRS Ruling which had compelled mostly Christian schools to jump through bureaucratic hoops to demonstrate they were not discriminating to the satisfaction of a hostile IRS in order to keep their tax exempt status. This was not a partisan effort. Indeed, I worked with Missouri Democratic Senator Eagleton’s staff as Lutheran Missouri Synod church schools were particularly burdened by the IRS Ruling. Senator Eagleton made sure that the Senate approved the House-passed Dornan Amendment. That Amendment became part of the Treasury Appropriations bill and was signed into law, stopping the IRS crusade against Christian schools.

In April, 1980, in Harris vs. McRae, the U.S. Supreme Court upheld as constitutional the Hyde Appropriations Amendment banning taxpayer paid abortions. In 1981, during a break in a Conference Committee meeting held in the Capitol building, I was conferring with my boss, Mr. Dornan, when liberal New York Democrat Congressman Charlie Rangel, who supported legal abortion and abortion funding, came over to talk with us about that decision. Rangel told us that Congress could never give up the “power of the purse.” He said, “You know, we differ on abortion. But if the Supreme Court had said that they were going to tell us how to spend our (i.e., taxpayer) money, I would have put in court-stripping bills faster than you could!” I remember Rangel pressing his finger on Dornan’s chest as he spoke, in a firm but friendly manner.

The appropriations amendments which will be required to blunt the effect of a Supreme Court decision mandating recognition of same-sex marriage must prohibit the use of monies or fees administered by an executive agency, judicial agency or court, or presidential executive order, directive or guideline or similar agency action to implement any aspect of the ruling in the Supreme Court marriage case, Obergefell v. Hodges, to prevent the following:

· Removing the tax exempt status of any church, institution, university, school or non-profit entity declining to facilitate or participate in same-sex “marriage:”

· Requiring any federal contractor or grantee to accommodate same-sex “marriage;”

· Disciplining or fining any person who declines to participate in a same-sex “marriage;”

· Requiring federal employees to undergo sexual attitude restructuring education to ensure their acceptance or accommodation of same-sex “marriage;”

· Withholding any federal grant or contract money to any state, territory or possession declining to implement same-sex “marriage” in schools or other agencies of state government;

· Withholding federal money from any state, territory or possession which does not change state, etc. legal codes to accommodate same-sex “marriage.”

· Allowing federal courts to hear challenges to any state or federal law affirming that marriage is only a relationship between one man and one woman. (See Article III Power to Curb Federal Court Jurisdiction.)

An appropriations bill is much easier to pass than a normal bill. Because funding bills are necessary to keep the government open, they must be considered and passed yearly. Other bills can be buried in committee, but appropriations bills cannot be ignored.

If our Republican House of Representatives and our Republican Senate place an appropriations rider on all spending bills stating “no funds appropriated hereunder may be used to implement the decision of the U.S. Supreme Court in Obergefell,” it would not undo or reverse a Supreme Court same-sex “marriage” decision. However, it would make Obergefell a decision that was never enforced at the federal level.

If Congress wanted to get creative, and send a message to a Supreme Court that had usurped Congress’ and the states’ role to decide policy, it could also consider an appropriations amendment to limit the number of clerks assigned to each Supreme Court Justice to a single clerk. If the Justices have so much time on their hands that they can attempt to defy the laws of Nature and Nature’s God, they may become more circumspect in crusading for the liberal agenda. (I actually had such an amendment drafted for Congressman Dornan while the Harris v. McRae case was pending. Had the Hyde Amendment been declared unconstitutional by the U.S. Supreme Court, Congressman Dornan intended to offer that amendment.)

It is most crucial that citizens upholding one man, one woman marriage make it immediately clear that they expect their Members of Congress to support anti-same-sex marriage appropriations riders, and to secure record votes to show the public how they voted on the specific question. To avoid taking a stand with a recorded vote, Members of Congress might try to lump all the appropriations bills into one “Continuing Resolution.” (A continuing resolution is a measure which generally funds the entire federal government in one appropriations bill utilizing spending conditions from previous years but with different spending amounts.)

Should the Republican leadership decline to take separate votes on individual appropriations bills to protect marriage, then the leadership should be removed for abandoning their stated policy beliefs as contained in the 2012 Republican Platform: “The union of one man and one woman must be upheld as the national standard.”

In April, 2013, the leaders of thirteen social conservative organizations wrote to Republican National Chairman Reince Priebus challenging the conclusions of a RNC report which concluded that the Reagan Coalition embracing social issue conservatives was a political relic and should be abandoned. The conservative leaders told Priebus, “We respectfully warn GOP leadership that an abandonment of its principles will necessarily result in the abandonment of our constituents ….”

Incumbent Members of Congress who fail to amend appropriations bills to protect natural marriage need to face primary opponents who will amend appropriations bills. We must ensure that protection of marriage becomes a necessary condition for receiving our votes in the 2016 elections and beyond.

No Congressman or Senator should be given a pass or be excused if they claim that the House or Senate Rules prevent record votes. There are procedures to ensure record votes are taken. For example, in the House, only 25 members are needed to call for a record vote on an amendment to an appropriations bill.

The risk of permanent damage to individuals, our institutions, and our nation is too great to allow those who represent “We the People” to duck accountability for defending marriage as it has been understood for millennia. Failure on our part to demand that our representatives use all legal powers they have, means we are giving up the fight, which would make us partially responsible for the evils that will ensue.

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Virginia Delegate Robert G. (“Bob”) Marshall is a senior member of the Virginia House of Delegates, currently serving his 12th term. First elected in 1991, he has consistently addressed a wide range of policy concerns including fiscal, social as well as civil liberty issues. Marshall is the co-author of the 2006 voter-approved traditional Marriage Amendment to the Constitution of Virginia. He is also the author of 2012 statute preventing Virginia from assisting the federal government in the arrest and detention of American citizens without trial, presentment of charges or representation by counsel of alleged violations of federal security laws, and the author of a 2015 law requiring Virginia law enforcement to secure a warrant to track cell phone or computer identification and location data. Marshall has been married to his wife Cathy for 39 years, and have five children, and five grandchildren. He can be reached at [email protected].

This article on congressional appropriations power is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

What Do We Do When the Pope Gets It Wrong? [+video]

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No less a defender of Catholic truth than Barack Obama has made it clear: Pope Francis threw “the full moral authority of his position” behind the need to abandon fossil fuels, junk our unjust and exploitative free market system, and massively redistribute wealth via globalist institutions. These heroic measures are essential to save the earth and cushion the impact of switching to solar, thermal or hamster-treadmill power for poor countries worldwide.

Meanwhile, climate catastrophists would love you to (a) completely ignore the encyclical’s reiteration of bedrock Christian principles and (b) conclude that the pope indeed has invoked his “full moral authority” and that docile Catholics must fall in line with his political and economic advice and vote accordingly.

Catholics should, of course, charitably consider what the pope has to say. But, ultimately, are we obliged to agree with either his scientific assessment or his policy recommendations? If the pope predicts it will rain, but then it doesn’t, must we say that it is “raining spiritually” but we are too sinful to see it?

I heard a lecture from a priest a few days ago which insisted that we must, that not just papal encyclicals but even ordinary papal lectures on Wednesday afternoons might well form part of the “ordinary magisterium,” which some Catholics consider to be protected from error by the Holy Spirit. In other words, the pope is something very close to an oracle, coming out with divinely-ordained truths at least once a week.

This is not what the Church teaches, and a good thing too, because it is manifest nonsense. We can see that it is nonsense simply by toting up the statements on which popes have contradicted each other, or which Church councils or catechisms have later gone on to reverse.

When Popes Contradict Each Other, They Can’t All Be Oracles

Let’s leave aside, for the present, the issue of which papal positions are true or false. The only important point here is that papal positions have been different, sometimes radically. Here is a short (and non-exhaustive) list of issues on which, over the course of time, papal positions have made what can be honestly called a 180-degree reversal.

Usury. Lending money at interest was condemned for centuries by popes and councils (Clement V; Lateran II, III, IV & V) as usury, a sin against nature akin to sodomy. Dante, following Aquinas, put bankers alongside sodomites in Hell. Simple lending of money at interest is no longer identified with usury. Pius VIII and Pius XII each allowed for lending at interest, and the Vatican runs its own bank today, which charges interest.

Slavery. Several popes (Gregory I, Urban II, Nicholas V, Paul III) explicitly allowed for the owning of slaves by Christians and Pope Pius IX’s Holy Office was still defending the moral licitness of slave-owning as late as 1866, three years after the Emancipation Proclamation. It took until Leo XIII — after slavery had ended in most major Catholic countries – for a pope to condemn this practice outright. The Catechism of the Catholic Church now calls the practice “intrinsically evil.”

Religious liberty. A long list of papal statements in the 18th and 19th centuries, echoing previous papal bulls and centuries of Church practice, reaffirmed the positive duty of Catholic rulers, whenever prudent, to repress and punish “heretics,” that is, non-Catholic Christians. (The most recent such statement was made by Leo XIII.) This was contradicted by the Second Vatican Council, which teaches that state coercion in matters of conscience violates both revealed and natural law — which means that it is intrinsically evil.

Torture. In service of the repression of heresy, countless popes were knowingly complicit in the use of torture to extract confessions, and a means of execution (burning at the stake). Pope Innocent IV explicitly called for such use of torture. The Catechism of the Catholic Church now teaches that torture is intrinsically evil (2297).

Were those Catholic bankers who charged interest before the popes reexamined the question really committing sins against nature? Were Catholics who joined the abolitionist movement also sinning, by claiming that the institution was evil prematurely, before the popes got around to it? Were advocates of religious liberty before Vatican II material heretics, until that day in 1963 when the Council came round to agreeing with them? Were opponents of torture culpable for teaching a position before the Church approved it?

Or could it be that the notion of the papacy as oracle is false, that Christ never intended the papacy to serve such a function on a such a wide range of issues?

The popes try to act as shepherds, and consult their knowledge of Scripture, Church tradition and natural law to come up with the wisest, most prudent ways to apply the timeless and divinely-protected principles drawn from these sources at a given moment in time — and sometimes they make mistakes.

Sometimes the pressure of secular society, long-engrained evils, institutional self-interest, bad advisors, the limits of their background or personal foibles, overwhelm them and lead them astray. Clearly this is what the Church believes, or else it would have felt duty-bound to cling forever to the first thing said by any pope on any subject. Pope Francis (like each of his predecessors) would feel obliged to go right on denouncing all interest on money, defending slavery and allowing for the torture and imprisonment of Protestants — for fear of discrediting the Oracle.

Then-cardinal Ratzinger said approvingly in 1982 that the Vatican II constitution Gaudium et Spes was a “counter-syllabus” to that issued by Pius IX. The future Pope Benedict XVI knew that the Church is not sacramentally married to every assertion on economics and politics by any pope. Nor are laymen. If popes could be wrong about something like slavery — when Protestant laymen like William Wilberforce were right — they might also be wrong about immigration or economics or climate science.

Does anyone really think while the Holy Spirit failed to prevent popes from approving slavery, He has given Pope Francis infallible insight into the sensitivity of the climate to carbon dioxide and how best to solve the problem? The reality is that popes might be hearkening too closely to secular wisdom, liberal opinion or dominant forces in powerful countries (like the EU), just as previous popes were when they defended slavery.

Our Lord has made His intentions perfectly clear by letting popes contradict each other on such subjects — when He could easily have prevented it. Catholics believe God does prevent popes from erring on central and narrowly-defined matters of faith or morals, much as He protected the biblical authors from error. The credibility of this doctrine is only undermined when we confuse it with contradictory scientific and economic papal opinions. God never meant to leave behind an oracle. When we invent one to shore up our political preferences, we are forging a golden calf. (“What Do We Do When the Pope Gets It Wrong?”, originally posted HERE)

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Dignity, the Constitution, and the Bible

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As noted in this writer’s most recent article, the Supreme Court decisions of the last fifty years which have declared social conservative positions related to sexuality to be unconstitutional in law have their ultimate source in the court’s own moral intuition (and that of a like-minded academic world), not the text of the Constitution. Like the court’s separation of church and state decisions from the mid-twentieth century on, which are less concerned with impartiality between religions and more concerned with striking a balance between religion and irreligion, they were simply imposed by the court on an unwilling nation, and maintained against popular protest by a cultural elite on the strength of its own conviction.

As noted in the previous article, the “right of privacy” which lies at the heart of the court’s decisions on sexual relations was cast in personal terms, as a right to sexual choice in the intimacies of marriage, and this was soon expanded, although not by good logic, to a general right of privacy held by individuals. In the crucial Eisenstadt decision (1972), it appears to have been claimed that equality demands that the rights of married persons be held by all persons (which would really abolish marriage if consistently applied, as indeed, many years later, seems to be happening). All of the concern for personal feelings and dignity in the most intimate matters of life of the original Griswold decision (1965) was carried over in later decisions from an argument about the private nature of marriage into arguments about personal freedom and dignity for all persons in making choices about sexual behavior.

It is from this viewpoint that we now are confronted with the claim that the demands of the sexual revolution override the classic freedoms of the First Amendment. Freedom of religion is disregarded where SOGI (sexual orientation and gender identity) laws apply; freedom of association is threatened by campus non-discrimination requirements and barely survived in the Boy Scouts of America vs. Dale decision of a decade and a half ago; freedom of speech and of the press are in much better shape in this country, with hate speech laws not allowed by the Supreme Court. Nevertheless, the hate speech doctrine, in which truth is no defense, is a doctrine used by the cultural left in advancing the sexual revolution, and has been enacted into law in other countries. In an appallingly perverse twist, the right of privacy, which is the legal weapon of sexual license, and was supposed to guarantee personal dignity, is now the ultimate justification for denying privacy and dignity to most persons in public rest rooms, lest a tiny minority be subjected to indignity (in their own minds).

The Supreme Court’s edicts, which have the effect of constitutional amendments, have substantially brought this deplorable loss of freedom and democracy to pass. While it is sometimes possible to enact laws that defend religious freedom, liberty of conscience, and unborn children into law, they can only be very modest, even when passed by Congress, and even then are faced with legal challenges in an environment in which protecting conscience and life is held to be aggressive, irrational, and a personal attack. To repeat, the Supreme Court’s decisions on sexuality have no basis in the text of the Constitution, which does not mention marriage, the family, or sexual behavior, and which was enacted by people who considered that traditional Judeo-Christian sexual morality was correct for all mankind for all time. The court’s contrary reasoning is that freedom and equality are constitutional ideals, and now we know better about sexuality than the framers of the Constitution (although a large part of the public disagrees, including many very well informed people).

The court’s real claim to power rests on “substantive review” of laws, which is based on the claim that the Fifth Amendment (guaranteeing liberty), and the Fourteenth Amendment (guaranteeing the equal protection of the laws) mandate not only the equal application of laws to all citizens, but also fair law. Used by the court in the era of laissez-faire capitalism to invalidate laws aimed at restraining that view of economics, it was repudiated by the court appointed by Franklin Roosevelt in order to protect the New Deal, only to be practically revived in the second half of the twentieth century to protect the sexual revolution. While Justice William O. Douglas, the author of the Griswold decision, “declined” the “invitation” to revive substantive review generally, he effectively did so on sexual issues. The only other Roosevelt appointed justice remaining on the court, Hugo Black, commonly regarded as a liberal, delivered a devastating rebuke in his dissent:

“I repeat so as not to be misunderstood that this Court does have the power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of the States to govern themselves which the Constitution plainly intended them to have.”

Doesn’t the Ninth Amendment say that there are rights not mentioned in the Constitution? It has to be kept in mind that this amendment was enacted shortly before judicial review made its very modest appearance in the Marbury vs. Madison decision (1803; in which the Court actually declared unconstitutional a law expanding its own authority), and certainly well before the doctrine developed into its monstrous form of today. The Founders certainly did not intend for the Supreme Court or other courts to invalidate state laws they thought violated rights not mentioned in the Constitution. Justice Black explained in his dissent that the framers were warning that the Constitution was not to be understood as saying that:

“those rights which were not singled out [by the Bill of Rights] were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure.”

The Tenth Amendment speaks of powers (saying that the federal government has only the powers explicitly granted it), while the Ninth Amendment speaks of rights (saying that there are rights held against the federal government, enumerated in the Bill of Rights, but these do not mean that any power unaffected by the Bill of Rights is held by the federal government).

One may ask where the Supreme Court finds the audacity to impose its own moral intuition on the country. The real power held by the court is that of an authority with a sacred power to discern moral truth. That is the way in which its decisions are treated by much of our society, and yet everyone, including the court, would deny that it has any sacred power. Chief Justice Earl Warren, the author much of the liberal judicial activism imposed on the country, said quite honestly in an interview with the reporter Harry Reasoner after his retirement that the Supreme Court had “only its conscience” to appeal to. This sounds noble, but why is the conscience of the Supreme Court justices superior to the very different consciences of other people, some of them very well informed?

Christians do believe that there is an authority with a sacred power to declare moral truth, namely God, and that He has spoken in the Bible. There was a time when the nation sufficiently shared this view that it was not unreasonable to enact Biblical precepts into law without further justification, but today, one can understand that people want to know why certain Biblical precepts make good laws for the state. Social conservatives endeavor to give good reasons as to why traditional morality is the best basis for society, and is a reasonable basis for law. Yet on sexual issues, the court’s finding of a right to sexual choice which is fundamental to personhood really means that Biblical doctrine cannot be enacted into law, because it would violate a right to personal dignity the court has found by its own moral intuition.

The morality of personal autonomy the Supreme Court mandates is inimical to the Biblical morality of sin and salvation, indeed, the first move in either evangelism or the religious instruction of children is to say that people are sinners who should feel ashamed and be punished. Only then is there “good news.” But it is precisely this morality and message of personal responsibility, judgment and punishment which the court’s morality of autonomy holds to be oppressive. And since it is the Supreme Court and lower courts that are decreeing a morality of personal autonomy, the wider society is now being organized around a principle of self-law (which is finally lawlessness) inimical to God’s revelation in the Bible.

This stark conflict of moralities, between the Biblical condemnation of sin and the liberationist condemnation of Biblical morality as oppressive, explains the intensity of the culture war over Biblical morality. The Supreme Court’s decisions advancing homosexual liberation, Romer vs. Evans (1996), Lawrence vs. Texas (2003), and Windsor vs. United States (2013) are all intensely hostile to Biblical morality, attacking it as hateful, demeaning, and an attack on personal dignity. While the court found it necessary to refer to such constitutional doctrines as liberty and equality, it is obvious that the real controlling consideration is the claim of personal pain. That being the object of moral condemnation is painful is certainly true, but that it is therefore wrong requires the further demonstration that the condemnation is unjust. And any examination of the justice of the claims of Biblical sexual morality, one widely held from time immemorial and reinforced by the devastation wrought by promiscuity in our day, are precluded by the claim of moral autonomy.

American Christians who are serious about obeying God now have a very difficult future. Not only will they be penalized in business and the professions by the requirement that they contribute to sinful behavior in the provision of goods and services, consideration of employment, and housing, but the Christian subculture itself, established to enable Christians to obey God in the world and provide a refuge from secularization, will be attacked as contrary to the public good and impaired or destroyed through such devices as the loss of tax exemption, loss of accreditation, and the instituting of requirements that a Biblically faithful organization cannot meet. This ominous prospect, already in some measure occurring, was outlined in a recent article discussing Senator Mike Lee’s proposed legislation to protect religious organizations.

The first and overriding consideration of disciples of Christ is to obey God, regardless of the consequences. That may mean the loss of business and professional opportunity, the loss of laudable Christian achievement already existing in these areas (as witness Catholic adoption services), and the destruction of the much of the Christian subculture. But we need to stress to the larger society when and if it does happen, that the reason is not to be found in any false analogy to racism, which rested on superficial differences between people with no firm basis in Christian doctrine, or any threat of a religion dominating society (not a serious possibility in the contemporary West), and certainly not on the text of the Constitution, but on the sensibilities of the secular left, which managed over several decades to convert its desire for sexual license into constitutional law on the basis of the moral intuition a Supreme Court receptive to its wishes. We know that the future belongs to God, and will be to His glory, but we may reasonably hope that future generations will not see sensibilities as a worthy justification of the judicially enforced sexual revolution. (“Dignity, the Constitution, and the Bible”, originally posted HERE)

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Time to Checkmate Federal Courts on Same-Sex Marriage and More

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At the close of the Constitutional Convention in Philadelphia in 1787, a woman allegedly approached Benjamin Franklin and asked, “Well, Doctor, what have we got – a republic or a monarchy?” The sage 81-year-old Franklin replied, “A republic, if you can keep it.”

Wordsmith, entrepreneur, inventor, diplomat, and polymath, Franklin understood that a piece of paper, however well conceived and drafted, would never be sufficient to secure ordered liberty. Over the long haul, the prize of a republic of free citizens would hinge on constant effort.

The new U.S. Constitution was a grand legal document, but its function would be to provide the tools for generations of human exertion. Without continuing the sacrifices made by Franklin and the founders into the future, the American experiment in liberty, which captured the imagination of the world, would not endure.

Can we today, utilizing the tools of the Constitution, keep alive the self-governing federal republic we have received? With the U.S. Supreme Court entertaining, as if a serious legal issue, whether ordinary state laws on marriage were outlawed 147 years ago when the post-Civil War Fourteenth Amendment was adopted, now would be a good time to reexamine and deploy such tools. An obvious starting point is the control of federal court jurisdiction which the Constitution entrusts to Congress. (For a discussion of several other constitutional means to check judicial usurpation, see Edwin Vieira, How to Dethrone the Imperial Judiciary (2004).)

No court can decide any case without jurisdiction, the authority to render a binding judgment in a disputed matter. Unlike most state courts which possess general jurisdiction, federal courts have only limited jurisdiction to hear cases as authorized by the U.S. Constitution and laws thereunder. They are courts of limited jurisdiction.

Article III of the Constitution provides in part:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— . . . —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Emphasis added.]

The above language was the result of multiple compromises by the Constitutional Convention. Chief among them was the so-called Madisonian Compromise. Some delegates opposed creation of a federal court system below the U.S. Supreme Court, leaving state courts to decide federal issues first, with possible appeal to the Supreme Court. James Madison and others thought creation of a lower federal court system was best, and persuaded the Convention to defer the issue to later congressional decision.

Thus Congress was given authority over the existence of lower federal courts including details of their jurisdiction. Congress has used this power to alter lower court jurisdiction in a variety of ways. One of the most prominent was the Norris-LaGuardia Act of 1932 which restricted injunctions in labor disputes – a statute later upheld by the Supreme Court. (See “Congressional Authority over the Federal Courts,” Congressional Research Service (May 16, 2005).)

As for the U.S. Supreme Court, the Constitution, not Congress, sets its original jurisdiction, the matters initially filed in and heard by it. These cases are rare and comprise a fraction of the high court’s workload. The bulk of its deliberations are appeals from lower courts, its appellate jurisdiction. As to this jurisdiction, Congress is given a large hand: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (See Ralph A. Rossum, “Congress, the Constitution, and the Appellate Jurisdiction of the Supreme Court,” 24 Wm. & Mary L. Rev. 385 (1983).)

After arguing for the general soundness of the Constitution’s allocation of judicial power for the new federal system, Alexander Hamilton, in Federalist No. 80 (1788), explains the checking power entrusted to Congress over court jurisdiction against any “mischief” that might arise:

From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages. [Emphasis added.]

(In Federalist Nos. 79 and 81 Hamilton discussed the ultimate check provided Congress over the entire federal judiciary, the power to impeach and remove judges.)

In the modern era, various efforts have been made to use congressional control over court jurisdiction to check sweeping liberal decisions of the Supreme Court. The subjects addressed have included Court rulings which sanctioned large-scale busing as a remedy to public school segregation, banned traditional group prayer in public schools, and overturned longstanding state criminal laws restricting abortion. Other efforts to curb jurisdiction have involved religious liberty questions, recitation of the Pledge of Allegiance, display of the Ten Commandments, and state marriage laws reflecting the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair.

Recently some members of Congress have focused on the need to restrain federal judges from imposing their will over state marriage laws – to protect the ancient understanding that the nature of marriage involves two parties of the opposite sex rather than a homosexual pair. Congressman Steve King (R-IA) has led a handful of his colleagues in seeking such legislation in the current Congress. See Rep. King’s bill entitled “Restrain the Judges on Marriage Act of 2015,” H.R. 1968, 114th Congress, 1st Session (2015). Most Republican congressmen appear to be overly timid and have been unwilling to join this effort. Only 10 members have signed on as co-sponsors: Brian Babin (R-TX), Jeff Duncan (R-SC), Louie Gohmert (R-TX), Doug LaMalfa (R-CA), Thomas Massie (R-KY), Steven Palazzo (R-MS), Glenn Thompson (R-PA), Tim Walberg (R-MI), Ted Yoho (R-FL), and Walter Jones (R-NC). Are these the only Republican House members who have the courage of their convictions on marriage?

Sen. Ted Cruz (R-TX) introduced a companion bill to Mr. King’s bill in the Senate, S.1080, “Protect Marriage from the Courts Act of 2015.” He has zero co-sponsors at this point. Are there no other Republican Senators who support traditional marriage?

In the 1970s and 1980s, Sen. Jesse Helms (R-NC) had some success in the Senate with court limitation amendments on school prayer. But he too faced opposition from some Republican colleagues.

In April 1979, with a 58-member Democratic majority, Helms won approval of court limitation twice (with votes of 47 to 37 and 51 to 40), only to see the legislation die after parliamentary maneuvers and inaction in the Democratic House. In August 1982, when Republicans held 53-member majority in the Senate, Helms offered a similar court limitation amendment, which by a 47-53 vote survived a motion to table (or kill). Lacking 60 votes for cloture, though, the legislation did not clear the Senate. Helms tried again in September 1985. By then not only did he face liberal Democratic opponents, but key Republicans, including Senators John Danforth (R-MO), Pete Domenici (R-NM), Barry Goldwater (R-AZ), Orrin Hatch (R-UT), and Richard Lugar (R-IN), joined them to table the amendment by vote of 62 to 36.

Congressman John Hostettler (R-IN) led a winning effort in the House in 2004, when Republicans held a slim majority. His Marriage Protection Act removed all jurisdiction from lower federal courts and appellate jurisdiction of the Supreme Court over the Defense of Marriage Act. DOMA, enacted in 1996 by veto-proof majorities of both houses of Congress, allowed states not to recognize same-sex marriages from other states (sec. 2) and defined marriage for federal purposes as only between a man and a woman (sec. 3). After the House Judiciary Committee, chaired by Congressman Jim Sensenbrenner (R-WI), cleared Hostettler’s bill, it passed the full House in July 2004, on a vote of 233 to 194. Despite Republican control, the Senate failed to take action. The bill had been referred to the Senate Judiciary Committee, chaired by Sen. Orrin Hatch, who had earlier opposed the Helms legislation limiting court jurisdiction over school prayer. If Hostettler’s legislation had been enacted in 2004, the case of United States v. Windsor, 133 Sup. Ct. 2675 (2013), striking down sec. 3 of DOMA as unconstitutional by 5-to-4 vote, would likely never have been decided.

In Federalist No. 78 (1788) Alexander Hamilton reckoned the judiciary the “least dangerous” and “weakest” branch of the federal government. Unlike the executive or legislative branches, the judiciary, he noted, lacked the sword and the purse. He thought that while “individual oppression” may proceed from courts, danger to the “general liberty of the people” exceeded the judicial power.

Brilliant though he was, Hamilton failed to see what might happen when most of the checks and balances applicable to the judiciary under the Constitution were allowed to lie dormant for half a century and more. He overlooked the dangers that an extra-constitutional ethos might grow up, encouraged by the Court’s own extravagant jurisprudence, holding that the constitutional text and the Court’s interpretations are functionally equivalent, and thus irreformable except by the Court itself.

Moreover, it is certain that the original and later constitutional framers never envisioned Supreme Court justices growing so arrogant as to engage in wholesale usurpations against customary state legislative powers. They surely never imagined that federal courts would turn the killing of an unborn son or daughter into a constitutionally protected right. But see Roe v. Wade, 410 U.S. 113 (1973). The framers did not dream that such courts would transform what was “the crime against nature,” homosexual sodomy, into protected behavior. But see Lawrence v. Texas, 539 U.S. 558 (2003). And nothing the framers included in the Constitution contemplates a right for the oxymoronic concept of same-sex marriage, yet lower courts have forced this unnatural relationship upon the states and upended millennia of civilizing law.

Despite what they may not have foreseen, Ben Franklin and other constitutional drafters did leave us the tools of self-government, more than ample to stop judicial hubris and other legal chicanery. Thus we have the means to preserve our republic and its historic values. Do we have the will?

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Thomas J. Ashcraft is a lawyer in Charlotte, North Carolina. He served on the legislative staff of U.S. Senator Jesse Helms in the 1980s and as U.S. Attorney for the Western District of North Carolina, 1987-93. Email him at [email protected].

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Same-Sex Marriage Versus Judicial Good Behavior

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“Same-sex marriage” may be an affront to common sense, an oxymoron, and even an ontological impossibility. But as the product of a type of behavior familiar in contemporary politics, its promotion is nothing really new. The contention that the government may impose “same-sex marriage” on society is just a particularly egregious example of the dark art of “law laid down by linguistic legerdemain”: namely, the usurpation of governmental authority through alteration of the meaning of a legally operative word or phrase by affixing to it some tendentious adjective or other qualifying term.

Simply by transmogrifying definitions, entirely new sets of legal rights, powers, privileges, immunities, duties, exposures, and liabilities can be created out of essentially nothing more than plays on words. For example, prefixing the noun “speech” with the pseudo-adjective “hate” creates the novel legalistic category of “hate speech”, which supposedly is not protected by the First Amendment, and therefore can be subjected to pervasive governmental regulation. With no greater difficulty than that, public officials can arrogate to themselves a license to impose censorship and to penalize individuals who expatiate vehemently on prohibited subjects. This process is also capable of aggregating such synthetic powers. For instance, once “same-sex marriage” receives a legalistic imprimatur, those who express a strong aversion to it can be condemned for “hate speech”.

Although such verbal tricks can be performed in legislative statutes and administrative regulations, the judiciary’s method of continuously generating myriad “precedents” on an ad hoc “case-by-case” basis — in each of which instances judges can make subtle, incremental changes in the law through supposed “constructions” and “applications” — provides the widest latitude for alterations of this kind.

Specifically, judges have expanded Congress’s limited constitutional power “[t]o regulate Commerce . . . among the several States” into a discretion to regulate, within and throughout the States, not only actual “Commerce”, but also matters which have nothing whatsoever to do with “Commerce”. This feat only required ruling that the power to regulate “Commerce” entitles Congress to regulate whatever is capable of “affecting Commerce” — even though the latter is admittedly not itself “Commerce”, or else the modifier would be unnecessary. Employment of the participle “affecting” has resulted in a legal elephantiasis of the term “Commerce” (and thus of Congress’s power with respect to “Commerce”), without the inconvenience (and honesty) of amending the Constitution for that purpose. More generally, by invoking “the living Constitution” — which must be distinguishable from “the Constitution” simpliciter, or else the participle would be superfluous — judges can rationalize to their own satisfaction the expansion of every governmental power to whatever degree they dare.

Self-evidently, though, “law laid down by linguistic legerdemain” is most effective — and most dangerous — when the process occurs through the redefinitions of words which do not appear in the Constitution. After all, phrases such as “affecting Commerce” and “hate speech” depend in the final analysis upon nouns the meanings of which are defined and thus circumscribed by the legal theory, history, and practice peculiar to the United States. Even by recourse to imaginative adjectival or other modifiers, one can go only so far in attempting to bend the received legal meanings of such terms before the deception becomes patent to every observer.

In contrast, the import of and justification for “same-sex marriage” depend upon plastic and controversial conceptions concocted from such sources as sociology, psychology, and fashionable ideologies, not upon specific legal terms with well-known and relatively narrow technical meanings. And necessarily so. Inasmuch as marriage has preexisted the government of the United States for centuries in Western civilization (and even for millennia if other civilizations are considered), the government cannot claim to have been the origin either of marriage itself or of the definition of marriage.

The U.S. Constitution nowhere mentions marriage or any matter material to it. So the government can point to no historical precedent or present power under color of which it can purport to equate “same-sex marriage” with marriage for any purpose. No power, that is, unless public officials enjoy an unbridled license to redefine common words ad libitum — because if “same-sex marriage” were the same as marriage the adjective would not be necessary. (And perhaps not to define those terms at all, under the pretense of equating them. For the proponents of “same-sex marriage” have yet to clarify precisely what definition of marriage allows for participation on equal terms both by two individuals of opposite sex and by two individuals of the same sex — and yet excludes such arrangements as “plural marriage”, “child marriage”, “incestuous marriage”, or perhaps even “interspecies marriage”.)

It should be obvious that for any public officials to claim the discretion to redefine words in order to expand their powers is to misuse or abuse their authority. Through the Looking-Glass exposes the ulterior purpose of such an assertion as well as its audacity:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Such attempts by political wordsmiths “to be master — that’s all” are arguably less dangerous as far as the Legislative and Executive Branches of the government are concerned than where the Judicial Branch is involved. For members of the Legislative Branch who persist in perversely redefining words in the course of enacting statutes can be removed from office by the electorate at regular intervals, or even can be expelled from Congress by its other members. If the chief officers of the Executive Branch (the President and the Vice President) misbehave in a similar fashion when executing the laws, they too can be removed by the voters; and in any event the President is subject to limitations in the number of terms he may serve. In addition, the President can demand the resignation of any errant official whom he has appointed to a position in the Executive Branch. Moreover, Congress can eject any civil officer of the United States from his office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.

Distinguishably, judges are not elected officials; and their tenures in office are indefinite, the Constitution providing that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour”. The latter clause is usually said to invest judges with “life tenure”, so as to render their expulsion from the Bench exceedingly difficult. Such is not actually the case, however. For judges can be removed — not only as with any other civil officers “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — but also for a lack of “good Behaviour” which does not rise to the level of an offense which warrants impeachment.

Plainly enough, the grounds for “Impeachment . . . and Conviction” and what forms of misconduct manifest a lack of “good Behaviour” are not identical. Rather, according to basic principles of constitutional interpretation, each provision of the Constitution must be construed in the light of the others, and that no provision of the Constitution can be presumed to be without effect. If the “good Behaviour” clause contemplated no more than the absence of “Treason, Bribery, or other high Crimes and Misdemeanors”, it would be superfluous — because, as civil officers of the United States, judges would always be subject to “Impeachment . . . and Conviction” on those grounds, without any special mention of their exposure. Or, to hammer home that point with redundancy, the Constitution might have specified that “Judges . . . shall hold their Offices unless impeached and convicted”. Thus, by dint of the dual standards, the Constitution recognizes that, although “Treason, Bribery, or other high Crimes and Misdemeanors” necessarily involve a lack of “good Behaviour”, not every lack of “good Behaviour” involves “Treason, Bribery, or other high Crimes and Misdemeanors”. And therefore the Constitution must allow for removal of judges under two different sets of circumstances and by two different procedures.

This is not to say that “Impeachment . . . and Conviction” would be inapplicable to a judge who practiced the dark art of “law laid down by linguistic legerdemain”, even in a single egregious case. Being a blatant mal-administration of his office, in violation of his public trust and duties, such misconduct could constitute a “high . . . Misdemeanor”, as William Blackstone explained in his Commentaries on the Laws of England and Joseph Story described in his Commentaries on the Constitution of the United States. Nonetheless, although possible, impeachment does not provide a practical remedy in most instances of this kind. First, the procedure is cumbersome. Second, the essentially criminal nature of a “high . . . Misdemeanor” would require sufficient evidence of malign intent (what lawyers denote as mens rea). The proof would likely be problematic, too, if an errant judge defended himself on the grounds that he had uncritically followed “precedents”, had mechanically applied the judiciary’s peculiar “tests” for construing the Constitution, or had relied unthinkingly upon some other intellectually impenetrable judicial mumbo jumbo in arriving at his decision.

In contrast, the standard of “good Behaviour” covers situations in which criminal wrongdoing and mens rea need not be present, whereas common sense deems intolerable the judicial misconduct in question.

That standard allows for the removal of judges who, although perhaps personally honest, have proven themselves in some other way unsuitable for continuation in office. A judge whose tenure manifests insanity, emotional instability, recurrent intoxication, physical inability to perform his duties, gross ignorance, incompetence as a legal analyst, or chronic indolence (to mention only a few disqualifying deficiencies) may not be guilty of “Treason, Bribery, or other high Crimes and Misdemeanors”; but his comportment certainly falls so short of “good Behaviour” as to require his removal. So, too, for a judge who, infatuated with “law laid down by linguistic legerdemain”, misuses the Constitution as a blank slate upon which to inscribe theretofore unheard-of and fantastic legal doctrines. Such a judge may sincerely hold to the belief that his office so empowers him. But an individual can be utterly sincere, yet at the same time completely and dangerously wrong. And an individual who acts upon so errant a belief cannot be suffered to hold a judicial office which enables him to harm the entire country by putting that belief into practice.

To be sure, the Constitution specifies no particular procedure for removal of judges because of their lack of “good Behaviour”. Nevertheless, a power of removal incident to satisfaction of that condition must exist, even if only by implication, or else the condition itself would be meaningless. And no part of the Constitution can be dismissed as inoperative. Therefore, once a judge ought to be removed on that ground, he can be removed. And, if nowhere else, the authority to enact legislation to effectuate that end must inhere in Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested in the Government of the United States”.

One plausible procedure drawn from the perspective of pre-constitutional Anglo-American legal history, as well as the structure of the Constitution itself, would involve: (i) a majority vote in both the House of Representatives and the Senate which call for the removal of a judge by enactment of a suitable bill or resolution which laid out the judge’s specific misconduct in violation of the standard of “good Behaviour”; followed by (ii) an order to that effect from the President if he concurred in Congress’s directive.

If the constitutional principle of “checks and balances” is to be maximally effective, however, the Judiciary should play no part whatsoever in this process. For, just as with an individual, no institution can be suffered to be a judge in its own case. The contemporary Judiciary daily demonstrates not only such a disregard for basic constitutional principles of self-restraint, but also such irresponsibility, arrogance, and even imperialistic ambition to lord itself over the other branches of government as well as over the American people as a whole, that no judge can be presumed to be unbiased where the lack of “good Behaviour” of some other judge is at issue. In contrast, the requirement that both the Legislative and the Executive Branches should cooperate in the removal of judges would maximize the constitutional “checks and balances” at work in the process, and would minimize the possibility that institutional or personal prejudices might improperly affect its outcome.

It might be objected that a Congressional bill or resolution mandating the removal of a particular judge from office should be disqualified as a constitutionally prohibited “Bill of Attainder”. The Constitution plainly provides, however, that a judge can be removed for lack of “good Behaviour”; and any such judge obviously must be identified by name in the course of whatever process applies. Therefore, if the Constitution permits that process to involve the passage by Congress of what could be called a “bill” specifically directed ex necessitate at that judge by name, then such a “bill” cannot be a “Bill of Attainder” — for the simple reason that one provision of the Constitution cannot render nugatory any other provision.

It might also be objected that a procedure would not afford “due process” to a judge threatened with removal. “Due process”, however, is the process the Constitution makes due, which is not the same in every situation. An individual nominated for a position on the Bench has always been entitled to submit evidence as to his qualifications within the rules established for such a case by the Senate, but nothing more than that. The selfsame procedure, according to rules established by the House and the Senate for their respective hearings, should equally suffice in the case of an individual’s removal from the Bench. Certainly no historical example can be cited in support of a prediction that either the House or the Senate would arbitrarily preclude a judge or witnesses on his behalf from testifying or introducing other relevant evidence when such a bill or resolution were being considered.

By whatever means, though, something must be done — and soon — to bring reckless judges to heel. The present enthusiasm among all too many judges for legitimating “same-sex marriage” indicates how far they are willing to go in aid of perverse “social engineering” at this point in time. That vanishingly few people ever imagined that American judges would go even as far (and as fast) as they already have ominously suggests that they are more than likely to go farther still.

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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment. He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com. His latest work is “How To Dethrone the Imperial Judiciary”. He can be reached at P.O. Box 3634, Manassas, Virginia 20108, or [email protected].

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Same-Sex Marriage: Efforts to Have Justices Ginsburg and Kagan Recuse Take a Troubling Turn

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Not only will we soon know how the U.S. Supreme Court decides the issue of same-sex marriage in the Obergefell case — we will also know if the Court will follow federal law and its own judicial ethics rules in reaching that decision.

On June 17, 2015, former U.S. Magistrate Judge Joe Miller wrote and published an article calling for Justices Ruth Bader Ginsburg and Elena Kagan to recuse from participating in the consolidated same-sex marriage cases now pending before the U.S. Supreme Court on the ground of bias. In support, Miller noted that both justices had officiated in the marriage ceremonies of same-sex couples, and that Justice Ginsburg had gone so far as to strongly suggest in public that the time for same-sex marriage had arrived.

In the course of his article, Miller also reported that the Foundation for Moral Law, which had submitted a friend-of-the-court brief in favor of traditional marriage, had also submitted a motion in support of Justices Ginsburg’s and Kagan’s recusals. Importantly, Miller also reported that not only had the Court not ruled on the Foundation’s motion, but that the motion had not even been posted on the Supreme Court docket. While a delay in posting can occur for a number of reasons, none applied here. Did someone at the High Court not want to acknowledge that such a motion had been filed?

Now we may have some indication that the U.S. Supreme Court uses Google Alerts, because shortly after the Miller article was published, on either June 17 or 18, 2015, the Foundation’s recusal motion suddenly appeared on the docket of the U.S. Supreme Court. Under a date of May 21, 2015, the entry read: “Request for recusal received from amicus curiae Foundation for Moral Law.” The new entry raises new questions.

First, the missing motion. The Foundation’s first motion to recuse consisting of eight pages was submitted on April 27, 2015 (and date and time stamped on April 27, 2015, at 11:47 a.m.) — a good three weeks before the Supreme Court claims that it was “received” on May 21, 2015. The Foundation for Moral Law later filed a second motion to recuse consisting of four pages on May 21 (date and time stamped on May 21, 2015, at 11:28 a.m.). The second motion was filed after Justice Ginsburg performed another same-sex wedding, and was to the effect of: “there, you did it again.” The second motion refers back to the first motion. Why is there only one entry on the Court’s docket sheets? What happened to the original motion?

Second, the name. The Foundation document is entitled a “Motion.” Why is it entitled on the docket as a “Request”?

Third, the action. According to the Court rules, a “Motion” is “filed” with the Court. Why is the action taken by the Court described only as “received” and not “filed”?

These points may appear to be minor – words that only lawyers would quibble over. But in reality, they suggest that the High Court, for an inordinate time, has ignored the recusal motion. While the Court has finally acknowledged that some recusal filing was made, it certainly gives no assurance that any ruling on the motion will be forthcoming before the Court decides the same-sex marriage case.

Federal law requires judges and justices to recuse from any case in which their impartiality “may reasonably be questioned….” 28 U.S.C. section 455. Moreover, Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court….” However, as this case is demonstrating, the Supreme Court appears to believe it is under no obligation to abide by that federal law and judicial Ethical rule.

First, while Justices Ginsburg and Kagan have an ethical duty to avoid commenting on cases, and a statutory duty to recuse when their impartiality “may reasonably be questioned,” as a matter of practice, each justice is the sole judge of her own case. While a decision of a lower federal court judge may be appealed to a higher authority, each U.S. Supreme Court Justice has the final word on his own fitness to serve. These two Justices should have addressed the question publically prior to participating in oral argument (issue one and issue two) on April 28, 2015, but they did not. Since these two Justices ignored problems caused by their conduct, the remainder of the Court should have stepped in and addressed the issue for them, but the other seven Justices have remained silent.

Second, even now, the Foundation for Moral Law’s motion to recuse is not officially recognized by the High Court as being a motion, the docket sheets characterizing the motion as a mere “request.” Having no obligation to rule on a mere “request” — especially one that it represents was not even “filed” — Justices Ginsburg and Kagan would seem to be free to disregard the matter completely without obligation to give any reasons whatsoever why they could be impartial.

The effort to have Justices Ginsburg and Kagan recuse is not just a lonely one of former federal Magistrate Judge Joe Miller from Alaska and the Foundation for Moral Law in Alabama. It is also supported by the American Family Association, Vision America Action, the National Organization for Marriage, the U.S. Justice Foundation and — in a story largely ignored by the mainstream media — supported by an unanimous vote of the Louisiana House of Representatives, as well as Louisiana Governor Bobby Jindal.

Should Justices Ginsburg and Kagan continue to disregard their apparent conflict of interest, the long-standing legal maxim that no one should be a judge in his own case again would be upended. And if the motion is then disregarded by the Court as a whole, to which it was addressed secondarily, the opinion of the two justices on their own fitness to participate in the vote would stand. In either event, for many people, continued inaction on these recusal motions will not only erode public confidence in the U.S. Supreme Court, but would call into question the constitutional legitimacy of its forthcoming same-sex marriage decision.

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Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. In the recent same-sex marriage cases, they filed an amicus curiae brief in the DeBoer case in the Sixth Circuit, and another amicus brief in the Obergefell case in the U.S. Supreme Court. They now practice law together at William J. Olson, P.C. They can be reached at [email protected] or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage” which appears on the USJF website. To support this important work, please make contributions the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose

“Prepare for Civil Disobedience”: Southern Baptists Urged to Reject Any Laws Legalizing Gay Marriage

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Prepare for civil disobedience.

That’s the message one prominent pastor is sending to some 16 million members of the Southern Baptist Convention.

Jack Graham, pastor of Prestonwood Baptist Church in Texas, said American Christians should be prepared for massive fallout if the Supreme Court legalizes same-sex unions.

“We want to stay in the system,” Graham told me in a telephone interview. “We want to work in the system. We want to support our government. We want to obey its laws” . . .

While affirming their love for all people – regardless of sexual orientation, the former Southern Baptist presidents said the “cannot and will not affirm the moral acceptability of homosexual behavior or any behavior that deviates from God’s design for marriage.” (Read more from “Southern Baptists Urged to Reject Any Laws Legalizing Gay Marriage” HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

The Duty of Lower Magistrates to Face Down the Tyranny of Same Sex Marriage

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The Federal Government seems bent on destroying Western Civilization. After a long litany of laws, policies, and court opinions designed to undermine and attack the family and Christianity, the final blow could be decreed in just the next several days. I speak of the impending ruling on homosexual marriage.

It appears the U.S. Supreme Court is about to trample the constitutions of 31 states – another frontal assault against family. Sociologists like Carle Zimmerman (Family and Civilization, (Intercollegiate Studies Institute; 2nd abridged edt., 2008)) and J.D. Unwin (Sex and Culture, (Oxford University Press; 1st edt., 1934)) have proven conclusively that when nations denigrate God’s created order regarding family, they cannot survive. There has never been an exception in the history of the world.

Every good Statist knows that in order to strengthen the State — you have to weaken the family. The federal government has been imposing law and policy to accomplish that end for decades now. Meanwhile, the lower magistrates — who in a true federalism know they possess lawful authority and a duty to interpose — have decided to hide behind the lie that “A federal court has ruled, so we can do nothing but obey.”

Most Americans no longer understand that the states were never intended to be mere provinces of the federal government. They were never intended to be mere implementation centers for unjust and immoral federal laws, policies, and court opinions.

Herbert Schlossberg speaks to this point in his magnum opus, Idols for Destruction. He says, regarding the lesser magistrates:

“The framers of the American Constitution were conscious of the excesses to which centralized political systems were prone, and their solution was to devise multiple levels of authority. The existence of states, cities, counties, townships, and independent taxing authorities, which, to apologists for the state, has been a messy derogation from beneficent centralized power, has saved us from some of the assaults on freedom that others have suffered.” [Herbert Schlossberg, Idols for Destruction: Christian Faith and Its Confrontation with American Society (Nashville: Thomas Nelson Publishers, 1983) 213.]

Schlossberg points out, however, that in our day these “intermediate institutions, which formerly served to check the central power, have largely atrophied.”

He later reveals how the federal government has pulled this off:

“After three-quarters of a century, the new nationalism has borne bitter fruit. People who have despised the right of localities to govern themselves have delivered them into the hands of federal masters. Local politicians have acquiesced in the mugging of the provinces because in return for giving up political authority they have received monetary benefits.” [Schlossberg, Idols, 214.]

The U.S. Constitution did not bind the states to a suicide pact with a lawless federal government. The idea that the states (and lesser authorities) must obey a lawless federal judiciary is a fiction. The insanity being imposed by the federal government has reached such a fever pitch that people have begun to question, “At what point do we offer resistance to this federal behemoth?” And more importantly, “What form of resistance is legitimate and has a chance for success?”

The Doctrine of the Lesser Magistrates

A tool that is found in Scripture and proven in history to rein in tyrannical acts by the higher authority is known as “the doctrine of the lesser magistrates.”

The lesser magistrate doctrine states that when a higher-ranking civil authority makes unjust or immoral laws, policies, or court opinions, the lower or lesser-ranking civil authority has the God-given right and duty not to obey the higher authority. If necessary, the lower authority may even actively resist the superior authority.

The foremost treatise ever written on the doctrine was penned by John Knox. His Appellation to the Nobles of Scotland (1558) cited over 70 passages of Scripture (John Knox, Selected Writings of John Knox, edit. Kevin Reed (Dallas, TX: Presbyterian Heritage Publishing, 1558/1995)). Knox insisted that the nobles, as lesser magistrates, were responsible to protect the innocent and oppose those who made unjust or immoral laws or decrees.

An apt summary of the doctrine was actually voiced by a higher magistrate, Roman Emperor Trajan. While giving a subordinate a sword, Trajan stated to him. “Use this sword against my enemies if I give righteous commands, but if I give unrighteous commands, use it against me.”

John of Salisbury, in his work Policraticus (1159), spoke of the duty of lesser magistrates when faced with tyrannical acts by the higher authority. He wrote:

“Loyal shoulders should sustain the power of the ruler so long as it is exercised in subjection to God and follows His ordinances; but if it resists and opposes the divine commandments, and wishes to make me share in its war against God, then with unrestrained voice, I answer back that God must be preferred before any man on earth.” [John of Salisbury, The Statesman’s Book of John of Salisbury – Policraticus, trans. John Dickinson (New York, NY: Russell & Russell, 1159/1963) 258.]

And now, here in our day — we are confronted with a tyrant.

The interposition of the lower magistrates is not subjective or lawless. There are only three reasons for open defiance to the higher civil authority. First, they are to oppose and resist any laws or edicts from the higher authority that contravene — violate, oppose, or contradict — the law or Word of God. Second, they are to protect the person and property of those who reside within their jurisdiction from any unjust or immoral laws or actions by the higher authority. Third, they are not to implement any laws or decrees made by the higher authority that violate the U.S. Constitution or their state constitution, and if necessary, resist them.

The interposition of the lower civil authority is not anarchy or chaos. Rather, when the higher authority makes laws, policies, or court opinions which accomplish any of these three reasons, it is they who have acted as anarchists; it is they who have brought chaos. The interposition of the lower magistrates acts to restore order.

Application of the Doctrine in Our Day

When the higher authority puts the force of law behind the behavior of perverse and base men, the interposition of the lesser magistrates is necessary. How would such interposition be applied in our day?

A governor of a state should refuse to implement any federal court opinion that tramples the state’s constitution and imposes homosexual marriage upon the people. Unfortunately, all of the governors who have had their state’s constitutions trampled have hidden behind the common lie of the lower authorities, namely, “A federal court has ruled, we must obey.”

Most point to the Supremacy Clause of the U.S. Constitution to justify their cowardice, but the Supremacy Clause — Article 6, paragraph 2 of the U.S. Constitution — nowhere declares that the U.S. Supreme Court, nor any federal court, has supremacy over the constitutions or laws of the states or the judges of states. Rather, it states that the U.S. Constitution has supremacy and laws or treaties made in accordance with the Constitution.

That this is fact is not only seen in the plain reading of the Clause, but also by the actions of the only state that thus far has stood in defiance of federal tyranny — Alabama. On January 23, 2015, a federal judge trampled Alabama’s constitution and demanded that homosexuals be allowed to marry.

In a separate mandamus proceeding, the Alabama Supreme Court responded to this federal lawlessness by ordering the probate judges that issue marriage licenses to not issue them to homosexuals. This stopped all such “marriages” cold. No homosexuals have been married in Alabama since this act of interposition by the Alabama Supreme Court.

Governors are not the only state officials in a position to uphold their oath of office and interpose. County clerks and probate judges who issue marriage licenses could refuse to issue them to homosexuals. Some already have. Most in Alabama refused to issue them even before the Writ of Mandamus by the state supreme court ordering them not to issue them.

State legislatures should support such brave magistrates with laws and resolutions to protect them. Any and all positions of civil authority — whether through election or appointment — should refuse to be party to such a depraved action as two men or two women marrying. They should also refuse to re-write their state statutes to comply with such an immoral federal imposition.

County boards, village boards, town boards, and city councils can pass laws that interpose against such immoral federal usurpation.

Silence and compliance always allows the tyrant authority the convenience of covering his unjust or immoral actions. If everyone just goes along with the tyranny of the higher authority, the tyranny they have imposed can more readily go unnoticed. When men take a stand in defiance of tyranny, however, it forces the tyrant authority out of his lair as he responds by hammering those who refuse to join him in his rebellion against God. People begin to see the tyrant authority for what it is.

When civil authority acts tyrannically, it always counts on the compliance of its lower authorities. Peasant revolts are easily put down. But when the lesser magistrates refuse obedience — that is when tyrant civil authority has a problem on its hands.

America’s founders never expected the federal government or its judiciary to be the lone arbiter of its actions. James Madison, the architect of the U.S. Constitution, stated that when the federal government makes unjust or immoral laws or policies, “…the states who are parties thereto [parties to the U.S. Constitution] have the right, and are in duty bound, to interpose for arresting the progress of evil.” (Virginia Resolution, 1798.)

Thomas Jefferson stated, “…and that whensoever the general government [the federal government] assumes undelegated powers, its acts are unauthoritative, void, and of no force.” (Kentucky Resolution, 1798.)

The Role of the People

The people play a huge role in the doctrine of the lesser magistrates. Often, the lower civil authority will refuse to do what is needed and necessary. They will refuse to confront the tyrant’s higher authority. The people must prod their lower magistrates to do so.

Abolitionist Frederick Douglass once stated:

Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or both. The limits of tyrants are prescribed by the endurance of those whom they oppress. [Frederick Douglas, West India Emancipation Speech, Canadaigua, NY; August 3, 1857.]

The people must demand that their lower civil authorities defy federal tyranny. They must not allow them to hide behind the lie “we must obey.” The lower magistrates often will not act until the people rally them. When the lower authority does defy, it is imperative that the people support them with their resources, with their bodies, with their very lives.

The people need to build relationship with their local authorities. The people should (and do) — by their action or inaction — play a role of immense importance when it comes to the effectiveness of the lesser magistrates’ interposition against tyranny.

When it comes to homosexual marriage being forced upon the states, the federal government has (i) contravened the law, Word, and created order of God, (ii) attacked our persons and property including our sons and daughters, and (iii) violated its limited delegated authority in the U.S. Constitution — they have accomplished all three in this immoral action. The lower civil authority is duty bound to interpose against such insanity being paraded under the color of law.

The lesser magistrate doctrine was first formalized by the pastors of Magdeburg, Germany in 1550. In what is known as the Magdeburg Confession, they proved from Scripture and history that lower civil magistrates have the God-given right and duty to defy a tyrant higher civil authority.

In near-prophetic fashion, they used marriage as an example of when lesser remedies would not work and open defiance by the lower authorities was necessary. They stated in the Confession:

Therefore, if now the leader or Caesar proceeds to such height of insanity only in that of natural knowledge which governs the society of civil life and uprightness, that he abolishes the law concerning marriages and chastity, and himself sets up a contrary law of roving unclean lusts … in such a case, doubtless, no clear-thinking person would have any hesitation about the divine right and commandment that such a leader or monarch ought to be curbed by everyone in his most wicked attempt, even by the lowest of the lowest magistrates with whatever power they may have. [Matthew Colvin, trans., The Magdeburg Confession (1550) (North Charleston, SC: Createspace Publishing, 2012) 60.]

The interposition of the lesser magistrates reminds the higher authority that their authority is delegated and limited. No man who holds government office rules with autonomy. The authority he has is delegated to him by God. All those in positions of authority stand accountable to God — even the Federal Government.

The people have the duty to rally their lesser magistrates in support of what is right, and against the immoral actions of the federal government. If the U.S. Supreme Court legalizes homosexual marriage, no state with constitutional provisions or statutes against sodomite marriage should recognize the Supreme Court’s immoral ruling, rather they should defy it.

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Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net). He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area. You can obtain his book “The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government” at Amazon.com.

This article regarding the tyranny of same sex marriage is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

800 Years of the Magna Carta Prove the Constitution is NOT Irrelevant [+video]

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The Constitution is NOT irrelevant and out dated as the progressives demand. But WE need to know WHY that is a lie.

Happy Birthday Magna Carta and enter in the perfect reason to talk and teach about the history of our Constitution and its relevance today!

THIS VIDEO WILL SET THE STAGE!

This is a brief history as told in detail by the above video:

In 1100 the people of England came together to force King Henry to sign the 1100 Charter of Liberties promising (among other things), that: 1) Government would no longer be evil and oppressive, 2) That the men making and enforcing the laws cannot hold themselves above the law and 3) People would not be forced to buy their inheritance from the government.

In 1215 the people took Liberty into their own hands. They got fed up with King John and his violations of the 1100 Charter of Liberties and they came together to create the Magna Carta of 1215. The Magna Carta provided instructions to the government about how to live up to the 1100 Charter of Liberties. The Magna Carta created a representative style government that put the people over the King. Our 4th, 5th, 6th, 7th, & 8th Amendments of our Bill of Rights all come from clauses 38-40 of the Magna Carta. “The Right to Petition the Government For a Redress Of Our Grievances,” the last Liberty identified in our 1st Amendment was first codified in the Magna Carta.

SEE A MODERN DAY MAGNA CARTA: https://goo.gl/wuB9H5

This Magna Carta, put the people in direct control of the government and set the stage for three more advances in Liberty.

1) The Petition of Right of 1628, declaring that Liberty is the inherent possession of men and not the gift of government.

2) The Grand Remonstrance of 1641, recognizing that oppressive government always operates under the same M.O.: Corruption of the Courts, Infiltration of Foreign Law, Government diminishing the property Rights of the people, Government creation of fiat to control the monetary system, and Government disarming the people while keeping the Government armed.

3) The English Bill of Rights of 1689, reinforcing that maintaining Separation of Powers is essential in preserving Liberty. In 1688 they declared that it will be the complete destruction of Liberty when the Executive Branch is allowed to write law, set aside law, and over turn law, when those are powers reserved to the Legislative Branch alone.

These five documents (Charter of Liberties, Magna Carta, Petition of Right of 1628, Grand Remonstrance of 1641, and the English Bill of Rights of 1689) make the Constitution of our Founders. These five documents form the foundation of our Constitution and are the reason why John Adams said in 1765,

“Liberty must at all hazards be supported. We have a right to it, derived from our Maker. But if we had not, our fathers have earned and bought it for us, at the expense of their ease, their estates, their pleasure, and their blood.”

Without the Magna Carta of 1215, there would be no Declaration of Independence, no Constitution, and no Bill of Rights. We have this history to thank for our Liberty today. So let’s celebrate it and teach the truth that can defeat the progressive lies.

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Coming Attractions at the Supreme Court Theater of the Absurd

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As usual in mid-June, the hearts of Supreme Court junkies beat ever more rapidly as they eagerly await “blockbuster” ex cathedra diktats from on high. Of great interest is whether Justice Anthony Kennedy meant what he said just two years ago, when five justices overpowered and insulted (Scalia, pp. 21, 25) four justices to declare unconstitutional an overwhelmingly enacted federal law restricting marriage to opposite sex couples. Writing for the five justices, Kennedy promised (pp. 25-26) that they had “confined” their ruling to requiring federal recognition of same-sex marriages in states choosing to make them lawful. However, what is now awaited is whether five justices will further abuse their power by barring any State from making same-sex marriage unlawful.

Justice Scalia added yet another warning (24) regarding a Kennedy promise. “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”

The five-justice fiat two years ago was itself predicted (5-6) by Scalia a decade earlier: “… Every single one of these State laws … against bigamy, same-sex marriage, adult incest, prostitution … bestiality, and obscenity … is called into question by today’s decision….” His then scoffed-at prediction was vindicated in 2013.

If five justices, including Kennedy, again prove Scalia prescient, this “raw judicial power” spectacle will not be over.

Organizations long-advocating sex between men and boys, and between humans and animals (see also) doubtless anticipate their turn at having five human beings who happen to sit on the Supreme Court proclaim that the Constitution protects their “lifestyle choices”—regardless of duly enacted laws, historic beliefs and traditions, and the wishes of millions of Americans, often majorities, who still adhere to those beliefs.

Fanciful you say? Shortly after the last “confined” gay marriage decision, a group wedding for police dogs took place halfway round the world, as

nine pairs of police sniffer dogs dressed in shawls, hats and socks were placed on a decorated platform like those used in traditional Buddhist weddings.

* * * *

The dog marriages were registered by an official in the presence of a crowd of veterinary surgeons, medical doctors, top police officers and the public at a ceremony …. Local television showed the dog couples later being driven away in a decorated police jeep for their “honeymoons.”

Yes, it did take place halfway round the world. But in this age of instant worldwide communication, rest assured that once anyone anywhere concocts any far-out scheme, it will arrive here sooner or later, probably sooner.

And don’t be surprised if five justices give it serious consideration.

What is NOT Stated Here

The probable coming same-sex marriage decision will be but the latest illustration of a long history of judicial abuse of power. Nothing above should be misconstrued or—more likely—misrepresented as endorsing or opposing either side’s position(s) in the same-sex marriage decision by likely no more than five out of nine human beings who happen to be Supreme Court justices. Rather, the position taken here is that these five power-wielding mere mortals have no business deciding this at all. They have absolutely no legitimate Constitutional authority whatsoever to impose their personal moral values upon well over 300 million people in what was founded as a representative democracy.*

Dog-marriage is a reductio ad absurdum of what all too often has been perpetrated by justices, whose happenstance occupancy of high court black robes does not confer upon them superior morality, wisdom or rationality—contrary to their inflated opinion of themselves. Justices Scalia and Thomas and Chief Justice Rehnquist were once left breathless (p. 12) by fellow justices’ “arrogance.” More recently, Scalia objected to (2) five justices’ “jaw-dropping … assertion of judicial supremacy over the people’s Representatives in Congress and the Executive.”

Not infrequently, judicial arrogance is accompanied by absurdity. With little effort, one can write a long article, or perhaps even a book, filled with examples of justices’ absurdities. A few should suffice to show that these are not confined to same-sex marriage, not by a long shot.

First, justices once declared (p. 41n) that raping a sixteen-year-old, under threat of death three weeks after she gave birth, was—unharmful! Second, few Americans realize that justices have created what they call a constitutional right exclusively for depraved human beings already convicted of the most gruesome acts to commit additional depraved violence free from any punishment whatsoever. (If five justices want something, they label it a “constitutional right,” regardless of whether or not highly literate people can find it in the actual Constitution.) Third, justices declared that a young man, who sexually assaulted four elderly women—including his grandmother—and murdered one of them, should be allowed to “succeed with the argument” that he should not be executed because he was only dangerous to old ladies (pp. 9-10) and would not be a threat if sentenced to life without parole (which, in reality, cannot be guaranteed). Even so, three out of four opinions on behalf of the rapist-murderer, occupying 19 pages, did not mention “grandmother” at all! Fourth, it is beyond absurd for justices to decree that no judge or jury can ever find (15-19) that a young man nearly 18 years old is mature enough to fully understand that premeditated torture-murder is immoral and unlawful, but that judges may rule (pp. 899, 970) that 12-year-old girls are mature enough to decide to have an abortion. (It should not surprise anyone if, not long from now, five justices rule that 12-year-old boys can be mature enough to validly consent to have sex with 45-year-old men.)

Popular Support Seeking Judicial Fiats

If popular support for same-sex marriage is growing, as advocates claim, why don’t they just ask elected legislators rather than unelected judges to write or re-write laws? Moreover, in states with initiative and referendum, a popular majority can change the law without legislators. After a California majority voted for Proposition 8 to restrict marriage to one man and one woman, it was beyond passing strange when opponents of that proposition went to court seeking its nullification by judicial fiat while, at the same time, claiming that a majority of voters now supported same-sex marriage. Why wasn’t another referendum sought for repeal? Recently, Catholic Ireland adopted same-sex marriage by referendum. Also, advocates already have obtained much from elected officials. If support is as widespread as claimed, it should be unnecessary to short-circuit the political process through judicial fiat, whose legitimacy is neither respected nor accepted by millions. (Of course, polls are always open to manipulation, and at least one recent poll was recently exposed as a fraud, in purporting to show wider than actual support for same-sex marriage.)

The advantage of legislative over judicial lawmaking is that justices “pre-empt [p. 20] the democratic debate” by “inscribing… current preferences…into our Basic Law.” These are made unchangeable (p. 567) by “remov[ing them] from the democratic process and writ[ing them] into the Constitution,” which is thus judicially amended to include sweeping rules embodying any five justices’ personal values.

For example, when they constitutionalized a right to homosexual sodomy, justices declared (p. 11): “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” As quoted above, Justice Scalia objected that this called into question all state laws concerning sex. More recently, Justice Alito suggested that, if States are constitutionally prohibited from restricting marriage to one man and one woman, the same constitutional rule would require the States to permit incest (p. 33) and group marriage (pp. 17-19).

These examples illustrate Judge (and later Justice) Benjamin Cardozo’s famous reference to the “tendency of a principle to expand itself to the limit of its logic.” That often happens when justices usurp the prerogatives of elected officials by deciding hotly contested political issues about which the Constitution is silent. By contrast, if these issues are left to elected officials to resolve after public debate, the law can be adjusted and re-adjusted. Some laws can then be left in place and others changed, without trying to turn them into irrational one-size-fits-all legislation. To have same-sex marriage, there is no need for blanket principles that apply to all sex matters, including man/boy and human/animal sex, incest, bigamy, polygamy—or dog weddings.

Justice Scalia repeatedly has told audiences that, when the Constitution says nothing about an issue, “persuade your fellow citizens.” Instead, many activists, apparently lacking confidence in their own persuasiveness, prefer to short circuit the process. Two decades ago, Scalia (joined by Rehnquist, White and Thomas) warned (p. 1002):

[B]y foreclosing all democratic outlet for the deep passions [abortion] arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

And two years ago, Scalia repeated (p. 26):

We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.

For decades, justices have been arrogantly, illegitimately —and absurdly—usurping legislative prerogatives, forcing their personal morality down the throats of everyone else.

Justice Thurgood Marshall’s former law clerk, Harvard Professor Mark Tushnet, asks: “Why do we let them get away with it?”

Why indeed!!

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