The flagrant duplicity of Justice Anthony Kennedy’s Supreme Court decisions this term should render his opinions as lawfully binding as a sermon from Barney Frank. In other words: they are bloviating examples of politics before the rule of law. He has exhibited a complete disregard for the fundamental rights Americans possess, or that are protected under a simple reading of the Constitution, because he lacks any coherent jurisprudence. His hypocrisy on federalism reveals a naked political motivation for specific, and often diametrically opposed, outcomes.

In 1997, there was a case before the Supreme Court, Washington v. Glucksberg, regarding physician-assisted suicide that mirrored the arguments proponents of homosexual marriage have asserted. Despite the fact that proponents of the right to assisted suicide offered stronger arguments than those recently seeking to overturn state marriage laws and redefine the institution from the federal bench, the Court still ruled in favor of the state 9-0. Three of the justices – Kennedy, Breyer, and Ginsburg – completely contradicted themselves with the ruling on marriage.

The respondents in Glucksberg, led by Washington physician Harold Glucksberg, asserted a “liberty interest” and fundamental right to assist terminally ill patients in committing suicide. They contended that state law banning assisted suicide violated their “substantive” due process under the 14th Amendment.

Interestingly, the word substantive is never mentioned in the Constitution, but has been created by usurpation of power and revisionist history, and has now become the porta potty of post-constitutional jurisprudence for those too cowardly to pursue their societal transformation through the democratic process. It is a legal fiction meant as a means to an end – that is, societal transformation via ‘judicial legislation.’ (See, U.S. v. Carlton, J. Scalia concurring.)

On paper, the respondents in Glucksberg had a much better case than those who sought to invalidate state marriage laws. They were asserting the right of self-sovereignty and were simply asking the state to not interfere with their act. In the Obergefell case, they were asking the court to redefine an institution that has been defined by natural law and all of history until just a few years ago. They were also asking for a state benefit and recognition, the opposite of the relief the respondents sought in the assisted suicide case.

Yet, in Glucksberg, the court completely shredded the idea that there is a fundamental right under the 14th amendment to assisted suicide. The litmus test the court used, based on decades of past precedent, in determining whether the Due Process clause of the 14th amendment protects a specific act is whether the asserted right is “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”

Chief Justice Rehnquist, writing the unanimous opinion (although the four liberals disagreed slightly in a concurring opinion), noted that bans on suicide were a part of Anglo-American common law for 700 years and that “by the time the Fourteenth Amendment was ratified, it was a crime in most States to assist a suicide.” So, rather than the asserted right having deep roots in history and tradition, Rehnquist observed that the state laws were rooted in history and tradition. This was similar to Scalia’s point in his dissent in Obergefell when he observed that every state defined marriage as between one man and one woman at the time the 14th amendment was ratified.

The second requirement the court established in Glucksberg was that those asserting the new right provide a “careful description.” This is especially important because, as Rehnquist noted, “by extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.”

Much like in the marriage case, Rehnquist observed that despite the centuries of iron-clad opposition to suicide for terminally ill, attitudes were changing. But it has no bearings on the Constitution, because those are political decisions and need to be dealt with in the states through the political process. That’s why in upholding the state ban on assisted suicide, Rehnquist made a point of declaring the following in conclusion: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”

Now step back for a moment and ponder, in light of this court’s unanimous decision – including the votes of Kennedy, Breyer, and Ginsburg – to uphold the ban on assisted suicide, how irrational it is to overturn state laws defining marriage the way it has been defined for all of civilization? The notion that such a fundamental societal question – which was decided by 32 states directly by the people – could be overturned and all debate be shut off, based upon an asserted right stemming from an idea that never existed prior to this generation, is outrageous. Rehnquist observed that “most states” in 1868 banned assisted suicide. Well, all states, as Scalia noted in his Obergefell dissent, defined marriage as between one man and one woman.

But what is even more outrageous about Kennedy’s violation of the Glucksberg precedent is that the marriage case involves coercing states to provide the parties with benefits, not merely preventing the states from prohibiting homosexual acts, which was permitted nationwide in Lawrence v. Texas (2003) [in itself a reversal of precedent]. As Clarence Thomas asserts in his Obergefell dissent, “since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.” [emphasis added]

The fact that Kennedy signed onto Glucksberg, yet blithely overrules it in Obergefell, plus makes a huge jump from his own decision in the Lawrence anti-sodomy case, exposes a shameless policy preference that is pre-empted not just by our constitutional system of law but by the very liberal deities of stare decisis (court precedent) that Kennedy so fervently embraces. The only substantive due process that is being violated is the due process of the millions of citizens who voted to define marriage and are now being denied that democratic process through what Scalia aptly called “societal transformation without representation.”

Why are homosexuals given extra rights?

Kennedy’s transparently cloddish replacement of legal jurisprudence for perceived public opinion and personal social preference is even more apparent by, as Justice Roberts notes, his insertion of the adjective “two” into his edict redefining marriage as between any two individuals of the same or opposite sex. Once the premise is made that 5 black robes can redefine marriage like redefining gravity and bestow a constitutional right that is antithetical to the intent of the framers, it is indefensible to exclude polygamist marriages. Polygamists can procreate, and unlike homosexuals who didn’t even recognize their relationships as marriages until this generation, polygamy is “deeply rooted in history” and in some traditions.

Moreover, so much of Kennedy’s ruling is rooted in his fabrication of new constitutional rights; namely, the right to “dignity,” “nobility,” protect against stigmas, and “the right to define and express their identity.” If Kennedy believes it is his responsibility and prerogative to bestow those new post-constitutional rights on, perhaps, the most powerful and trendy class of people in the country, how much more so for a group that is still scorned, stigmatized, and denied their dignity to express their identity.

But again, Kennedy’s opinion is 100% politics, and the inclusion of a relationship that is not in vogue would undermine the acceptance of his political polemic.

Kennedy overrules himself on states’ rights

Nowhere is Kennedy’s modus operandi of ‘choose a political outcome first, backfill the legal rationale later’ – even when it is self-contradictory – more palpable than with his reversal of his decision in Windsor just two years ago. When writing the majority opinion in striking down the federal Defense of Marriage Act (DOMA), Kennedy dedicated seven pages to the importance of state control over marriage dating back to the founding of the country. “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

Let’s put aside the fact that DOMA never interfered with the states that adopted gay marriage; it was merely a protection for the states that chose not to redefine marriage, in addition to defining marriage for federal purposes, such as immigration law. But how can Kennedy say that the federal government cannot define marriage for its own purposes because states have exclusive power and then, just two years later, create a federal constitutional right precluding states from defining marriage as it has always been defined by those very states he so recently observed had marriage laws since the nation’s founding? How can he say that state laws with regard to marriage are supreme and then force every state to redefine its very essence?

Answer: naked politics and lawlessness.

For far too long, we have casually sat back and accepted opinions of the Court to be the law of the land, even when they clearly violate the basic tenants of our Constitution.

Appalling hypocrisy on popular sovereignty

Just a few days after rewriting the Constitution and countermanding the preamble of the Declaration, Kennedy signed onto a majority opinion in a seemingly unrelated case (Arizona State Legislature v. Arizona Independent Redistricting) that reveals even more hypocritical legal analysis designed to net the opposite result when it suits his personal politics. This case involved the Arizona state legislature suing for control over the redistricting process in their state after voters handed over the power of redistricting to an unelected commission. Writing for the majority, Ginsburg ruled that when Article 1 Section 4 grants the “Legislature” control over the manner in which federal elections are conducted in the state, it really also means the people of the state through ballot initiatives. This, despite the fact that the Constitution mentions the word Legislature 17 times, and in most cases, it’s impossible to be describing anything but its plain textural meaning.

As Thomas observed in his dissent in Arizona State Legislature v. Arizona Independent Redistricting, the majority (of which Kennedy was a co-signer) extolls the virtues of ballot initiatives and allowing the people of the state to decide redistricting, even though this is one of the few things preempted by the plain language of the federal Constitution. Yet, these same justices, during the same term, gaily overturned ballot initiatives of 32 states dealing with one of the most foundational and contentious societal issues of our time – all for highbrow concepts that are never mentioned anywhere in the Constitution and are indeed an anathema to the 10th Amendment and to the concept of fundamental rights – rights that were solely based on nature’s God.

For far too long, we have casually sat back and accepted opinions of the Court to be the law of the land, even when they clearly violate the basic tenants of our Constitution. But what we have seen in recent years is such a naked pursuit of politics from the bench that the political justices won’t even remain consistent in their own legal analysis precisely because they are solely focused on preferred outcomes. What has occurred this term in general, and in the marriage case in particular, has crossed a line.

Based on the tradition of all civilization, the founding principles of liberty expressed in the Declaration, the system of government established in the Constitution, and precedents of the court established by some of these very same political hacks – this opinion is null and void and should carry no weight among the states.

This fight is far from over. (“Justice Kennedy’s Naked Politics and the Hypocrisy of the Court”, originally posted HERE)

Follow Joe Miller on Twitter HERE and Facebook HERE.

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!!

Follow Joe Miller on Twitter HERE and Facebook HERE.