Thursday, July 2, 2015

McConnell: Powerless to Resist SCOTUS Marriage Decision. Oh Really?

[This is Part One of my answer to the question: Is there anything that Congress can do to address the recent Supreme Court decision in Obergefell v. Hodges? ]

In a stunning 5-4 decision, the Supreme Court of the United States struck down the laws of 39 States by which those States limited the issuance of marriage licenses to opposite sex couples. In Obergefell v. Hodges, Justice Anthony Kennedy, writing for the Court's bare majority, directly held:
The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples. 
Predictably, the decision was broadly celebrated by supporters of same-sex marriage, and criticized by opponents.

In the aftermath of Obergefell, many questions remain, and likely will have to be answered over the course of the coming years. Some of these questions will be profound, some pedestrian:
  • Will opening the definition of marriage to include same sex partners actually benefit those same-sex partners, in matters of commitment, health, and the like?
  • Will opening the definition of marriage to include same sex partners actual harm the "institution" of marriage?
  • What will the impact of the decision, which imposes on each State the duty and obligation to recognize the legitimacy of marriages licensed in other States have on State programs providing assistance and support to families? 
  • What will the impact of the decision be on the judicial processes of States be as the dockets of State Courts are expanded to cover this new species of marriage?
  • What will the impact of the decision be on collaterally related fields of law, such as adoption, estates and trusts, and the like?
  • What will the impact of the decision be on religious institutions that, by reason of their faith and doctrine, disapprove same sex marriage, and that, in practice, enforce doctrines and policies inconsistent with the Court's conclusion that the Fourteenth Amendment guarantees as a fundamental right the right of same sex couples to marry? Will churches and other religious bodies be at risk for loss of their federal income tax status as 501(c)(3) organizations? Will contributors to such religious bodies lose the tax deductibility of their donations as a consequence?
  • What are the implications for businesses, large and small, resulting from this decision?
  • Will businesses particularly involved in the wedding industry be required to provide support services -- the design of wedding apparel, the design of wedding cakes, the design of wedding announcements and invitations, the provision of wedding facilities such as banquet halls, wedding chapels -- or suffer severe economic harms if they decline to do so?
These questions cannot be avoided forever. Past experience with this issue tells us that those who have gotten a victory on the central question -- whether same sex couples have a constitutionally protected right to marry -- are not likely to surrender the battlefield just because the big skirmish seems to have been won. Disputes such as the one involving Sweet Cakes by Melissa -- an administrative proceeding predates the Obergefell decision -- point the likely path to be taken as the victors in Obergefell pursue ultimate cultural dominance.

In the face of the uncertainty resulting from the Court's creation of this newly minted fundamental constitutional right, many have wondered whether there is anything that Congress could do to address the Court's decision, and the legal uncertainties it creates. Is there, in fact, anything that the United States Congress can do to answer the Supreme Court's decision?

Before answering that question, we should take note of the fact that there are government officials that have demonstrated their intention to resist what they have determined to be a lawless decision by the Supreme Court and their resolve with regard to that intention. Among those officials are the Governor of Texas, the Attorney General of Texas, the Chief Justice of the Alabama Supreme Court, and the Attorney General of Arkansas.

Governor Abbott, of Texas, sent out a message via Twitter within minutes of the Court's announcement of its decision in Obergefell. His message explained, "Marriage was defined by God. No man can redefine it. We will defend our religious liberties."

Ken Paxton, Texas Attorney General, also expressed his views via Twitter, two days after the Court's decision. Paxton's message advised, "The reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty." General Paxton also responded to a request for a legal opinion regarding the impact of Obergefell on the religious freedom rights of government employees that may be called on to issue marriage licenses to same sex couples, or provide other services of a similar nature. In his Opinion Letter, General Paxton concluded:
In Alabama, the Supreme Court concluded that it would require parties to litigation there to provide briefing on the meaning and application of Obergefell. In light of their Order for additional briefing, Chief Justice Moore explained that clerks would not be required to issue licenses immediately: "What the order means is that within that 25-day period no (probate judge) has to issue a marriage license to a same sex couple."

In Arkansas, Attorney General Leslie Rutledge, while stating that the decision would have to be followed in Arkansas, assured Arkansans that her office would work to insure that religious liberties not be harmed. General Rutledge stated, "Moving forward, it is critically important that the rights of religious freedom be protected, and I am committed to doing so."

Additional responses from Governors and Attorneys General in other States, while expressing their profound disappointment in the decision and disapproval of the Court's reasoning, left no impression that those officials would look for the means to resist the decision, or were currently considering how to protect either religious liberties or economic liberties of those that might be affected by a conscientious opposition to same sex marriage.

So, then, we should turn to see what the response of the other, co-ordinate and equal branches of the federal government may do to respond to the lawless decision of the Supreme Court in Obergefell.

Because one of those branches has undoubted powers and means to address the decision, and to discomfit the Court and its Justices over it, I begin with the other branch, The President.

What can we expect from the White House in reaction to the Obergefell decision?

Well. Candidly. You can expect the rainbow:

No, silly, not Rainbow Brite!
And NOT Reading Rainbow, either! NO!

Well, then, what rainbow?

No, sorry, not even Skittles!

Here's the only kind of response that you can expect from the Obama White House:

I suppose, given that the "successes" of this administration can be stated only in terms of excesses, this preposterous recasting of the White House as the place of magical wonders is unsurprising.

So, then, what about the Congress, the Legislative Branch of the federal government? What might Congress do to address the Obergefell decision and the lawless Court that uttered it?

Senator Ted Cruz, currently seeking the Republican nomination for the 2016 Presidential election, has called for Congress to propose to the States the adoption of a Constitutional Amendment defining marriage as between a man and a woman. In addition, Senator Mike Lee (R-UT) introduced a First Amendment Defense Act in the Senate, S. 1598 and Congressman Raul Labrador (R-ID) introduced the identical bill in the House as House Resolution 2802, the First Amendment Defense Act.

The possibility of a constitutional amendment, however, was quickly given the wet-blanket-reception by Senate Majority Leader Mitch McConnell. In an interview on TV in his home state, Kentucky, McConnell said, "It isn't going to pass. It's one thing to talk about a constitutional amendment," he said. "We've only done that 27 times in the history of our country. It's not going to pass."

McConnell's observation about the amending of the Constitution is true as far as the number of amendments that have succeeded and over what time. His observation, however, doesn't do much to dispel the fact that 27 amendments in the life of the Nation equates with an amendment every 8 years or so, or, if you treated the first ten amendments, taken together as the Bill of Rights, as a single instance of amendment, that still equates with an amendment every 13 years or so. In either case, based on lifetime averages, we are currently past due for an amendment to the Constitution.

Of course, McConnell's surrender before the first volley only constitutes his frank recognition that he, in the Senate, and Speaker Boehner, in the House, could not muster votes of two-thirds of the members to adopt such a proposed amendment. That super majority is the constitutional requirement under Article V of the Constitution, for the Congress to propose an amendment for consideration by the States:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
McConnell's white flag on an amendment speaks volumes for the Republican leadership on Capitol Hill. Speaker Boehner, while expressing disappointment, appears only to have done that, and thus far, has not laid out any road map for the House to follow in response to the Supreme Court's decision. Boehner stated:
All human beings are created equal by God and thus deserve to be treated with love, dignity and respect. I am, however, disappointed that the Supreme Court disregarded the democratically-enacted will of millions of Americans by forcing states to redefine the institution of marriage. My views are based on my upbringing and my faith. I believe that marriage is a sacred vow between one man and one woman, and I believe Americans should be able to live and work according to their beliefs
So, then, while the iron is hot is when wisdom normally commands that the smith strike. Here, it appears that neither McConnell nor Boehner can see their way to forge an appropriate response or responses to the Supreme Court decision.

Because I was specifically asked by a correspondent to answer McConnell's claim that there was no way to roll back the decision of the Supreme Court, I will use a post that follows this one to lay out a specific set of proposals that are directly responsive to the Supreme Court decision, that Congress possesses constitutional authority to undertake, and that can bring about the result of returning to the States the question of how, within their separate, sovereign borders, they will choose to define marriage.

To close, however, I simply ask Senator McConnell and Representative Boehner, "How is it possible that Buford Pusser could rein in an out of control jurist, and you say you can't?"