The Heck You Say? When "May" Becomes "Must"

I read this morning that an Ohio judge that declined to perform same-sex marriages because he considered them morally repugnant has now bent the knee to the institution and will discontinue his stand on the subject.

Maybe you recall this story from the aftermath of the Supreme Court's decision Obergefell v. Hodges decision?

Judge Allen McConnell, a municipal judge in Toledo, Ohio, declined to perform a same sex marriage. According to the Toledo Blade version of this story, Judge McConnell sent word by his bailiff that "he doesn't perform this kind of marriage." Another judge performed the ceremony before the couple left the courthouse.

In the aftermath of Judge McConnell's refusal, the Ohio Supreme Court referred questions about whether Ohio judges can decline to perform same sex marriages to a special panel for evaluation.

The Board of Professional Conduct of the Ohio Supreme Court issued its decision on Friday, August 7. Today's news carried word that Judge McConnell, having reviewed the Board's opinion, would comply with its conclusion that he was obliged to perform same-sex marriages. The panel opinion is available for you to read online here.

Having read the opinion, I admit a certain perplexity and also that I have taken offense at the decision. The panel states that it "received inquiries from judges and a judicial association on behalf of its members seeking guidance concerning the obligation of a judge to perform same-sex civil marriages." In particular, apparently, the Board was asked two questions:

1) whether a judge who is authorized to perform marriages may refuse to marry same-sex couples based on personal, moral, or religious beliefs, but continue to marry opposite-sex couples; 

2) whether a judge may decline to perform all marriages to avoid marrying same-sex couples.

The first question raises an interesting question of English usage. The second question raises a regrettable question of tyrannical inclinations.

As it turns out, judges in Ohio are not required by law to perform any marriages at all. Rather, as the law is written, they have the authority to perform marriages. Notice this statutory language:

An ordained or licensed minister of any religious society or congregation within this state who is licensed to solemnize marriages, a judge of a county court in accordance with section 1907.18 of the Revised Code, a judge of a municipal court in accordance with section 1901.14 of the Revised Code, a probate judge in accordance with section 2101.27 of the Revised Code, the mayor of a municipal corporation in any county in which such municipal corporation wholly or partly lies, the superintendent of the state school for the deaf, or any religious society in conformity with the rules of its church, may join together as husband and wife any persons who are not prohibited by law from being joined in marriage.

Now, unless you are Humpty Dumpty, words have meanings, and the meanings of words are significant.

The marriage solemnization statute identifies those classes of persons that may "join together as husband and wife any persons who are not prohibited by law from being joined in marriage." That classification includes

1. ordained or licensed ministers
2. county court judges
3. municipal court judges
4. probate court judges
5. mayors
6. the superintendent of the state school for the deaf, or
7. any religious society according to its own rules.

Each of the foregoing persons or groups "may" solemnize marriages. Note, the statute does not say, "must" solemnize marriages. Nor does the statute say, "shall" solemnize marriages.

When legislatures write laws, they are assumed to choose their words with care, and to give to words their commonly accepted meanings. Among the sometimes confusing questions that arise in reading statutes are a set of questions related to the performance of duties and the scope of powers.

Here's an example out of the Constitution. 

Article I grants to Congress the sole power "to declare war." Nothing in the Constitution grants the President or the Courts the power to order Congress to declare war. It is, entirely, a discretionary power in the hands of the Congress.  Discretionary powers may be exercised or they may not be exercised. The essence of discretion is that the person or body granted that discretion decides whether to exercise the power.

So, suppose Franklin Delano Roosevelt had come to the Congress on December 8, 1941, and asked Congress to declare that a state of war existed between the USA and Japan as a consequence of the unprovoked attack on Pearl Harbor. Suppose further that the Congress tabled the proposal and did not bring it to a vote. Congress could have done so, although doing so would certainly have proved politically fatal.

It is, then, of some moment and import that the Ohio statute does not say, "County judges shall perform marriage ceremonies anywhere in the State." Rather, it says that have "jurisdiction and authority" to do so. That language does not impose a duty or obligation. That language recognizes an authority or power to perform marriages.

In a cascade of verbal and ethical gymnastics, however, the Board of Professional Conduct has accomplished what only Humpty Dumpty before it could accomplish: it took that tiny word "may," by the neck if you will, and squeezed and choked and hammered it until it cried, "UNCLE," and agreed to mean "must" instead. What linguistic alchemists must sit on this Board!

The Board Stunningly Transformed a Power that Judges May Permissively Exercise Into A Duty They Must Slavishly Accomplish.

So how did this come to pass? How was it done that what was a discretionary power of judges became an unavoidable duty of judges? To get to its conclusion, the Board took a series of steps. 

One step, in particular, strikes the mind as substantially suspect. That is the moment when the Board acknowledged that it did not know -- and did not have the competence to decide -- whether judges are mandated or authorized to perform civil marriages. Despite its ignorance of the answer to that question, admitted ignorance, and its incompetence to answer that question, the Board proceeded throughout the balance of the opinion to treat the performance of marriages as a duty. Worse yet, the Board reasoned its way to the conclusion that performing marriages, including same sex marriages, was a duty that could not, without violating the Code of Judicial Conduct, be avoided.

Next, the Board briefly touched on the Supreme Court decision on same sex marriage, Obergefell v. Hodges, and concluded, Obergefell is "the law of the land and applies equally across all jurisdictions.

The Board then moved to a pivotal point in its analysis.

Remember, the statute does not order judges to perform marriages. Rather, the statute states that a judge may perform them. As such, it is difficult to understand how performing marriages becomes a duty, that is a mandatory behavior. The Board, however, needed for the performance of marriages to be a duty. As a duty, the judge's conduct could then be assessed against the Code of Judicial Conduct.

With no substantive development, the Board decided that, because a judge uses authority granted to him by the State when he performs a civil marriage, the judge is performing a judicial duty. In performing a judicial duty, a judge must comply with the Code of Judicial Conduct, and the balance of the decision from the Board is, then, the unsurprising application a carefully selected set of principles drawn from the Code of Judicial Conduct

The Board notes that judges take an oath pursuant to statute. The Board asserts that personal, moral, and religious beliefs should never factor into the performance of a religious duty, relying on a Mississippi case.  When a judge takes the oath of office, the Board noted, quoting a Mississippi court case, “he or she yields the prerogative of executing the responsibilities of the office on any basis other than the fair and impartial and competent application of the law….”

In its next step, the Board concludes that a refusal to perform same sex marriage based on personal, religious, or moral beliefs "ignores the holding in Obergefell and thus, directly contravenes the oath of office." Indeed, the Board concludes, the refusal to perform same sex marriages while continuing to perform opposite sex couple marriages "is contrary to the holding in Obergefell and thus not in accord with the judge's obligation to comply with the law."

Still proceeding from its conclusion that performing marriages is a judicial duty, the Board next worries that "public confidence in the independence of the judiciary is undermined" when a judges allows his or her beliefs regarding the social or religious acceptance or validity of same-sex marriage to interfere in the performance "a judicial function or duty." The Board also charges that, by determining that he will marry only opposite-sex couples "undermines the holding in Obergefell and runs counter to the requirement ... to avoid impropriety and the appearance of impropriety."

The Board stated, next, that refusing to perform same sex marriage would constitute a sign of personal bias. On this point, the Board made reference to a case in which a judge denied post-conviction relief to a pregnant inmate so that the inmate would not have the liberty to seek out an abortion (to which the judge bore a moral objection). The Court in that case concluded that doing so constituted a bias that conflict with a judge's duty of impartiality and fairness. Here, the Board suggests that refusals to perform same sex marriage would, also, constitute bias that conflicted with the duties of impartiality and fairness. The Board also stated that, by disapproving of Obergefell, a judge would demonstrate a lack of fairness and impartiality.

The Board next noted the judges are required to "perform the duties of judicial office ... without bias or prejudice" and that a judge should avoid conduct that "may reasonably be perceived as prejudiced or biased." The Board then noted that by manifesting "bias or prejudice in any proceeding, he or she may bring disrepute to their office and the judiciary as a whole." The Board further concluded that doing so may be viewed as possessing a bias against a class or group based on sexual orientation. "Exhibiting bias or prejudice in the performance of judicial duties is antithetical to a core tenet of judicial office and erodes the public’s confidence in the independence, integrity, and impartiality of the judiciary"

The Board noted that a judge must avoid being swayed by public clamor or fear of criticism, and that doing so was essential to independence. To the extent judges permit such external factors to influence the execution of judicial functions, they will erode public confidence in the judiciary by giving place to such external influence.

Finally, the Board concluded that a decision not to perform some or all marriages after Obergefell may reflect adversely on, or impact, other functions and duties in his judicial office. The Board suggested, for example, that a judge that declined to perform any marriages after Obergefell might be required to disqualify herself from the decision of a domestic violence case arising in the context of a same-sex couple.

Lincoln's Cooper Union Address Offers Insight Into The New Ideological Tyranny

The year is 1860. The undoing of the Missouri Compromise by the Supreme Court decision in Dred Scott v. Sandford was much debated. Lincoln, in a short autobiography, attributed to that decision his re-animated interest in politics. Of course, by now, Lincoln had refined his oratory craft through his legal practice and through the debates with Stephen Douglas, his eventual Northern Democratic Party opponent in the election of 1860.

But earlier that year, in answer to an invitation from Henry Ward Beecher, Lincoln traveled to New York City to give a "political address." While Beecher had planned Lincoln's speech to be part of a series hosted by his church, when Lincoln stated that the only way he could accept the invitation was if he would be permitted to give one of his political addresses, the sponsorship of the event was transferred to the Young Men's Republican Union, and the event took place at the Cooper Union.

Lincoln's principal object in his address was to demonstrate that Dred Scott was wrongly decided by the Supreme Court, and that it flew in the face of the philosophy and ideas of those who framed the Constitution. Remember, Dred Scott not only held that blacks could never be citizens of the United States. In the case the Court also ruled that the Constitution withheld from Congress any power to regulate, restrict, or prohibit slavery in the federally administered territories.

In the agitations that were ongoing in the Nation, any move to restrict slavery, anywhere in the Nation, was bound to be interpreted as hostility to slavery in the States where it was lawfully ongoing. As Lincoln spelled out the historical ground for his view that Dred Scott was wrongly decided, he forcefully confronted the persistent complaining that he observed by slavery supporters that the Northerners would not leave them to their slavery and ways, but would poke, prod, and provoke until their institution was undone. In moving to his conclusion, he animated the essential dispute of freedom vs slavery, in terms of moral right and wrong:

The question recurs, what will satisfy them? Simply this: We must not only let them alone, but we must somehow, convince them that we do let them alone. This, we know by experience, is no easy task. We have been so trying to convince them from the very beginning of our organization, but with no success. In all our platforms and speeches we have constantly protested our purpose to let them alone; but this has had no tendency to convince them. Alike unavailing to convince them, is the fact that they have never detected a man of us in any attempt to disturb them. 

These natural, and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us. 

In a like vein, the decision by the Board of Professional Conduct evinces a like conviction to those of the slavers that, unless and until, every voice of objection, of dissent, whether framed as a religious and faith informed opposition, such as were Henry Ward Beecher's arguments against slavery, or phrased as constitutional principles, as were Lincoln's arguments against disunion, is not just silenced, but transformed into a voice of approval for same sex marriage, the work will be viewed as incomplete. Here, Judge McConnell must now bend his knee to the marital plow in service of elevation of same sex marriage.

A Satchel of Embarrassments: Anthony Kennedy and Obergefell v. Hodges

Anthony Kennedy

Justice Kennedy authored the opinion for the Court in Obergefell v. Hodges. He wrote the words, quoted by Justice Scalia, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,"

In Obergefell, the Supreme Court concluded that the right to marry constituted a right that was "fundamental" under the federal Constitution. Because the right is fundamental, it violates the Due Process Clause of the Fourteenth Amendment to deny access to the right to marry to persons seeking to create same sex marriages on the same bases and terms under the laws of the States as those laws provided for the creation of opposite sex marriages. The decision has been immediately and widely hailed for its result. Obviously those who do not view the Constitution as empowering the federal government to interfere in the power of the States to regulate domestic institutions like marriage, and those that oppose the concept of same sex marriage did not join in the hoopla.

Still, even among those that welcomed the outcome of the case, there were those who looked for, but did not find, the precise decision for which they hoped. The Court did not decide that all discrimination between heterosexual orientation and homosexual orientation is, in its nature, invidious. Nor did the Court conclude that such forms of discrimination were subject to strict scrutiny, as are

The problem with Justice Kennedy's opinion in Obergefell is that is without connection to the plain text of the Constitution, or its history, or its construction by the Supreme Court for the history of the Court from the ratification of the Fourteenth Amendment up until the decision of the Court in Obergefell. Does it matter that Kennedy's opinion reflects his conclusion (albeit without expressly stating it) that he was deputized by the Constitution to sit in judgment of the power of the States in areas of human interaction expressly reserved to them under the Tenth Amendment?

I think that it matters that those that ratified the Constitution, and those that ratified the Fourteenth Amendment, did not deputize the Justices of the Supreme Court to sit in judgment of the exercise of the powers reserved to the States and to the People. The consequence of Justice Kennedy's opinion for the Court is a further erosion of the federal system by which aggregation of power is prevented by granting certain powers to the federal government, and retaining others in the States and in the People.

The Deciding Season: UPDATE

[I posted this entry in anticipation of the decision by the Supreme Court on the question of same sex marriage in the case of Obergefell v. Hodges. Now that the Court has rendered its decision and construed the Fourteenth Amendment to protect a right to same-sex marriage, I have update the entry.]

We are in a deciding season.

This quickly concluding period comes every year, as June shifts from Spring to Summer, and as the celebratory Fourth of July holiday rushes toward us. It is the period when a rash of decisions are released by the US Supreme Court in cases that have been argued to the Court over the previous nine months.

Every year, the Supreme Court begins a new Term of Court on the First Monday following the First Sunday in October. For example, the Supreme Court is in its October 2014 Term of Court. Technically, each Term of Court continues for one year, ending when the Court sits again on the First Monday following the First Sunday in October of the next calendar year. By custom, and particularly because of the heat and humidity of the Washington metropolitan area, the Supreme Court does not hear cases argued in the summer months. In fact, the Court customarily releases all decisions in all cases that have been argued before the end of June, and then leaves town.

So that is what makes this the deciding season. The Court typically issues 70 to 100 decisions a year in cases that have been fully briefed and orally argued before it. In some cases, the justices are unanimous and the outcome not particularly stunning. For that reason, the Court will have a steady stream of decisions that are released all Term long.

But, when the judges are closely divided, and the cases are highly controversial, decisions in those cases often will not be available until the Court cannot stand the actual temperatures and humidity in Washington and they fly the coop. So, there really is a deciding season, every year, in June, at the Supreme Court. It happens, however, that not every Term of Court has cases that are of such far reaching significance as the Court has entertained this year.

Now that you see what season it is, perhaps understanding how to judge the quality of the "deciding" that goes on would be something of value to you.

If you are like me, it is still a magical thing -- whether in competition diving or gymnastics -- when judges hold up cards showing the score they assign to some athlete's performance. Sometimes, the temper of the crowd, the sheer athleticism, grace, skill, and performance of an athlete, any of these, or in very rare and amazing moments, all of them, explain why the judges all hold up cards indicating a perfect performance.

So here we are, watching the "deciders of the Constitution" render judgment in a rash of cases before they jet off to the Riviera, the Kremlin, and whatever other location to which their inclinations or handlers direct them.

By the way, please don't confuse the "Constitution deciders" with the "War Decider:"

Of course, some of you think the "War Decider" was silly, because he identified himself as "the decider." But, please, not so fast, and not so judgmental.

The Supreme Court, albeit in much more grandiloquent language, proclaimed virtually the same thing about itself over two hundred years ago. It proclaimed itself "the Constitution Decider" in an early set of cases. These cases, issued under the ministrations of Chief Justice John Marshall, set out the Constitution Decider role of the Court: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Then, seemingly, no one worried about the ravings in decisions like Marbury v. Madison and what they might portend for the future of the Nation. Thomas Jefferson was the notable exception to that unconcerned frame of reference. Jefferson thought the Judiciary a terrible menace to our constitutional frame, he referred to judges as "miners and sappers" continually at work undermining the law.)

The question is, as the Constitution Deciders finish their annual decider escapades, will you recognize "silliness" or worse, "errant knavery," if it takes the form of a decision from the Constitution deciders at the Supreme Court?

As I contemplated what advice I might give to an inquirer, on how to measure the quality of the deciding found in decisions of the Supreme Court, I considered many possibilities.

For sheer bulk, of course, few Justices had quite the knack of Harry Blackmun for overworking a topic, attempting through research on arcana only tangentially related to a case to make himself an "expert" in an area of law. Blackmun's opinion on the question of whether Major League Baseball violated antitrust law, Flood v. Kuhn, is widely considered to be, not only a discredited opinion, but also a perfect example of his ham-fisted prolixity.

Bulk, of course, cannot stand for reason. As Justice Scalia noted today, in the King v. Burwell case, in which he wrote a strong dissent,

"The Court holds that when the Patient Protection and Affordable Care Act says 'Exchange established by the State' it means 'Exchange established by the State or the Federal Government.' That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so."

So, as you see, writing 21 pages of wrong reasoning certainly cannot be the way to convince those who are judging how you performed your job that you performed well.

Or, of course, we could look to such things as spelling, grammar, composition, and style. That, of course, might give us a sense of the education, polish, and verbal acumen of opinion writers. Still, Thomas Jefferson and Abraham Lincoln both exhibited the occasional written eccentricity. I do not think that, by themselves, the principles by which your high school composition teacher measured your writing tells you exactly how to measure the quality of judicial opinions.

There is an old, perhaps over worn, comedic device in situation comedies involving children and teens. Frazzled parents will have told a youth to clean the bedroom, perhaps once, perhaps a dozen times. The room is a mess, a true wreck. The parent then threatens some doom: loss of privileges, loss of planned activity, etc. At some point, the youth "surrenders," goes to the room, and shoves everything in closets or under beds. A quick look from the doorway suggests that the obedient child has accomplished the assigned task.

For some parents, perhaps that child will have done as required. Maybe, and trust me as a dad that has stepped on a Lego or two, maybe all the parent wanted was the ability to have their feet touch the floor in the bedroom. More likely, however, the parent was accomplishing, they thought, multiple goals, such as instilling discipline, teaching respect for personal property, and the like. For the parent that just wants to feel the floor beneath their feet, the child has "done their job." For the other parent, a peek under the bed, a misadventure in opening a closet door, these reveal that the youth only appears to have done their job.

So maybe, just maybe, what we need, in evaluating whether an opinion's author has done his job (or hers), is to figure out what is their job. In fact, when the concern is whether the decisions of the Court tend to further increase the power of the Court, or to destroy republican democracy, or when they simply represent judicial sleight of hand, we assuredly cannot simply trust in judicial assertions that judges are "just doing their job."

“Just doing their job” has been the refuge of scoundrels, great and small, from Nazis in Germany to those that conducted the forced march of Native Americans on the Trail of Tears to those who are executing all manner of offenders in Sharia-governed countries. Of course, “just doing their job” is a tough line to sell when one does the job with such zeal, such evident gusto. “Just doing their job,” in fact, is the conscienceless denial of responsibility where, for a time, consequences of doing that job have not yet come home to roost.

In his critique of the Supreme Court decision in Dred Scott v. Sandford, Abraham Lincoln provided a nice list of considerations that he suggested might have, at least, provided cover for the decision.  He said:

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

I won't assert that Lincoln's is the definitive test for knowing when a decision of the Supreme Court can lay claim to certain legitimacy. Still, the points of inquiry he raises have value in assuring that the Court hews a line with which the People concur and that is known and understood by the various parts of the Government.

If we apply Lincoln's Legitimacy framework to current and pending decisions of the Court we may find that, just as then, we now live under a judicial, not a republican, form of government.

Consider, for example, the recent decision on same sex marriage, Obergefell v. Hodges.

Deciding Obergefell, the Court held there is a Fourteenth Amendment right to same sex marriage, because it denies a fundamental right to marry included within the Due Process Clause of the Fourteenth Amendment. [We can leave aside an obvious truth: such a right was never contemplated by the authors and ratifiers of the amendment.] Applying Lincoln's test would, I suspect, confirm that the decision has no claim of constitutional legitimacy.

Is the decision unanimous among the judges?

No, the decision is not unanimous. As the Court has politicized itself more and more by imposing policy rather than deciding cases, the frequency with which the Court is closely divided on outcomes continues to increase. Obergefell was no different, decided five justices to four.

Any other outcome would have been unthinkable. The gap in judicial philosophy between, on the one hand, Justices Scalia, Thomas, and Alito, and, on the other hand, Justices Breyer, Ginsburg, Sotomayor, and Kagan, on these questions is too broad to conceive of a unanimous result. The only surprise that remained in the Obergefell was whether Justice Kennedy would vote with the constitutional block or the progressive one.

Is the outcome without any apparent partisan bias?

No, the outcome is not without any apparent bias. Two Justices, Ruth Bader Ginsburg and Elana Kagan, had already officiated at same sex marriages while the Court mulled the question whether the Fourteenth Amendment guarantees an right to same sex marriage. It strains credulity, and it insults those Justices' sense of their own integrity, to charge them with what would have been the cynical act of presiding over marriages the legitimacy of which they held in doubt. Clearly, Ginsburg and Kagan labored under a bias favoring the recognition of same sex unions.

Is the decision in accord with public expectation?

Legal public expectation is an interesting notion. The vast majority of States have statutes or constitutions defining marriage so as to limit it to opposite sex couples. True, courts have suspended the operation of those laws. Nonetheless, those laws and constitutional provisions were the product of majority or super majority actions of legislatures and electorates. A recent story reveals the embarrassing lack of legitimacy to a study of how Americans perceive same sex marriage when they are given to understand that their communities accept the idea. I suspect Lincoln's calculus did not provide that shady studies deriving fudged numbers outweigh republican exercises in self government.

Has the recognition of a constitutional right to same sex marriage been a marked feature of the practice of governmental departments throughout our history? 

Hardly. It is just two terms since the Supreme Court found one section only of the Defense of Marriage Act unconstitutional. Candor requires supporters of same sex marriage constitutional rights theories to acknowledge the novelty of their cause.

Was the decision based on false assertions of fact?

It is painful to touch on this next point. It risks hurt to people I think are of good will. But I prefer not to be charged with a flabby application of Lincoln's test, so I will take it up.

At oral argument, Justice Kennedy pointedly noted that the existing, opposite sex couple definition of marriage is no novelty, but a function of the history of millennia in which is found no open practice of the right to same sex marriage. Contentions to the contrary screen reality. Moreover, and this risks the undesired infliction of pain, opponents of same sex marriage provided the Court with social science evidence that opposite sex couples provide the best foundation for the development of healthy children. This point, that harm will ensue to children has been buried by Justice Kennedy’s curious rearrangements of facts.

Was the outcome one that has been had affirmed and re-affirmed through a course of years?

Obviously, Obergefell, being the first decision recognizing a Fourteenth Amendment right to same sex marriage, cannot make such a claim. It remains to be seen whether the coming course of years will produce affirmations and re-affirmations of it by the court.

********

Obergefell is decided, and the Court has concluded that the Fourteenth Amendment guarantees a right to same sex marriage. A fair reading of the decision, using Lincoln’s legitimacy test, shows that the majority judges, like children shoving dirty laundry in closets and under beds, did not do their job.

We the Judges vs. We the People

When we are born, we lack the muscle strength and coordination to stand, to walk, and to run. We lack the teeth to bite, to tear, and to chew. We lack the visual acuity to discriminate among patterns.

These things -- for almost all of us -- do come. The joy of first sitting up by a child, first standing up, first steps will come. The delight of first solid food (at least until time to change the diaper). The thrill of the first words, "maaaa" or "dada."

But until these skills, and a host of other skill sets, switch on, and we hone and develop them, we have parents.

I don't care if you think we have parents as a feature of evolutionary biology or special creation, the point you cannot dispute is that young are nurtured by biological antecedents. This rule is not universal to the kingdom of animals, that parents engage in this nuturing to maturity. Many species engage in, essentially, lay and release. Think here of the images of turtles, freshly hatching on the beach, and making the dangerous dash to the sea. No mother to guard them, to guide them, they are the easy prey of men and beasts.

But, and this point is what brings me here today, there is a time when a being acquires the separate and equal station in life, to which the continuing application of infant parenting is entirely inappropriate. Think Jeff Daniels changing bearded Jim Carrey's diaper in Dumber and Dumber 2. And yet, gentle reader, this very inappropriate form of infant parenting is writ large across the American landscape. That infant parenting takes the form of judicial activism.

What bring this topic to mind?

Actually, a couple factors play into my mulling the topic.

First, Damon Root's piece in Reason magazine, which you can find here: When Judicial Activists Switched Sides. This article, in three brief pages, scopes out a history of the modern movement from self-government, that is, government by we the People through our elected legislative assemblies, to the governmental form of infant parenting, that is, rule by a judicial oligarchy. Root's pithy pitch makes clear the loss of self-government in the appeal by many different special interest groups to courts, particularly federal courts, on a host of disputed matters typically (historically) left to regulation by state legislatures.

Second, the pending cases before the Supreme Court on the subject of marriage put the question squarely before us:  given the separate sovereign status of the several States, and their retention under the Constitution of the plenary power to regulate the institution of marriage, can judicial interventions like the present cases (or, indeed, past cases such as Loving v. Virginia) be constitutionally justified?

Remember, no mere legal fiction, the separate status of the States as sovereign political bodies pre-existed the federation created by those States when they drafted and ratified the Constitution of the United States. To set up a workable arrangement of divisions of powers, the States made limited donations of their natural range of powers to the central or general government. At the same time, the States retained to themselves a broad swath of traditional State powers.

For example, the States retained the power to regulate public health, safety and morals (shocking, yes, but true, States have historically maintained -- as against any such power in the federal government -- the power to enact and enforce moral regulations). On the other hand, States entirely surrendered to the new federal government the power to enter into treaty relations with foreign powers. While the States, at the Nation's founding, retained the power to establish an official church, they specifically withheld a like power from the central or general government. On some matters, as allowed by the express terms of the Constitution, both the States and the central or general government share a power. One example of such a shared power is the power to tax. The States enjoy plenary power in this regard, the federal government enjoys such power to tax as allotted to it in the Constitution.

So, then, the questions related to regulation of marriage should begin where the Nation did, with the Constitution. Did the States donate any power related to the regulation of marriage to the federal government in the Constitution? There is no rational ground on which one may assert that they did so.

Failing to dive into the history of our Nation, failing to comprehend the comprehensive struggle leading to the ratification of the Constitution, cheats one of the ability to understand the significance of an act such as a federal court ordering a State to change its regulation of marriage. No one, not Hamilton, not Jay, not Madison (the authors of the Federalist Papers), NO ONE AT ALL, contended that the Constitution sent to the States for ratification allocated any power to the central or general government on the question of marriage (or, for that matter, on any topic not expressly stated in the Constitution). So, if the Supreme Court rules on the marriage cases, and confines itself to the Constitution as it was on the date it became effective (June 21, 1788, when New Hampshire became the ninth State to ratify it), then there is no legitimate basis for the Court to do otherwise than to rule that questions of marriage were reserved to the States and to the People in the drafting of the Constitution, and to affirm the cases before it (ones sustaining State laws limiting the definition of marriage to opposite sex couples).

But the Court won't confine itself to the 1788 Constitution.

Proponents of marriage equality base their case on another Constitution. That Constitution is the one resulting from the addition of the Fourteenth Amendment to the Constitution. That amendment cured the ill resulting from Dred Scott v. Sandford, a case in which the Supreme Court held that blacks were not, could never be, citizens of the United States under the Constitution. The Fourteenth Amendment made "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" citizens of the Nation and of the State in which they reside. More than that, though, the Fourteenth Amendment imposed guarantees that newly minted citizens -- that large class of former slaves included -- enjoyed full participation in important aspects of citizenship. The amendment guarantees equal protection under the law, and due process rights prior to deprivation of rights to life, liberty or property.

So marriage equality advocates would have the Court find, within the requirements of equal protection and due process, a right of one person to enter into a marital relationship under State law with a person of the same gender. Now the Court will rule on the question. Its ruling will likely come before July 1, 2015. The Court will either affirm the decisions of the lower courts that are before it, or reverse those decisions. If the Court affirms, then States in those cases will remain free to regulate marriage, and to limit marriage to opposite sex couples. If the Court reverses, then the States in those cases, as the States in the many other cases in which courts have held that limits on marriage to opposite sex couples violate the Fourteenth Amendment, will be obliged to license both opposite sex and same sex marriage (or to exit the marriage licensing process entirely). (Occasionally, the Supreme Court fails to reach a decision on a particular case during the term in which it is argued; none of the factors typical to such cases, such as the retirement or death of a justice after argument, are present here.)

Damon Root's article linked above, in its closing paragraphs, quotes the late justice, Hugo Black. In 1968, Black expressed his views on the Constitution in lectures given at the Columbia University School of Law. What he said there stands today as a sound reminder of the dangerous dependency on allowing the Court to treat this Nation, these States, as overgrown babies requiring its particular brand of infant parenting through judicial abrogation of State laws:

[T]here is a tendency now among some to look to the judiciary to make all the major policy decisions of our society under the guise of determining constitutionality. The belief is that the Supreme Court will reach a faster and more desirable resolution of our problems than the legislative or executive branches of the government. To the people who have such faith in our nine justices, I say that I have known a different court from the one today. What has occurred may occur again. I would much prefer to put my faith in the people and their elected representatives to choose the proper policies for our government to follow, leaving to the courts questions of constitutional interpretation and enforcement. (Quoting H. Black, A Constitutional Faith at p. 11).

Black spent a lifetime in and around the Court. Read those words: "To the people who have such faith in our nine justices, I say that I have know a different court from the one today." How slender is the reed on which you wish to rest your rights? Many difficult cases of the Court, in areas such as criminal law, economic regulation, and constitutional rights, are decided by slender margins, five justices against four, sometimes by slenderer margins three or four justices deciding an outcome for one reason, joined by a couple justices agreeing with outcomes but rejecting reasons. Do you rest comfortably knowing that the rights you hope to celebrate are a justice's breath from extinction?

If, like Black, like Lincoln, like Jefferson, you recognize that government by judiciary is unsound in principle and ephemeral in fact, then you will not celebrate a decision of the Supreme Court striking down State laws on marriage. Even those that support marriage equality must rest uncomfortably in such cases. Our more secure rights are secure because they rest on the acceptance and shelter of the great body of the People of the states in which we live. And, but for the limited class of matters over which the States permit the federal government to have rule, the soundest place for policy judgments is in the great, unwashed herd, that are We the People.