Oregon Appeals Court: Sweet Cakes at Bat(ter)

First Liberty Institute has filed its appeal brief on behalf of Sweet Cakes in the case that imposed a $135,000.00 judgment against that small business when its owners declined to use their creative and expressive skills to prepare a cake celebrating a same sex civil commitment ceremony in Oregon. Oh, yeah, I know that there are issues that you think are important, and you may not think this is one. Having spent over a quarter century defending First Amendment rights, I disagree. If you disagree, it is likely either that you (a) hold special sympathies for those seeking recognition of same sex unions/marriages, (b) hold special antipathies toward claims in the Xian community about the "war on Christians," and/or (c) hold the view that baking a specially designed cake does not constitute a form of expression worthy of protection under the First Amendment. I would like to propose that you should welcome the bakers' appeal. First, without regard to your views on same sex marriage or civil unions, the Sweet Cakes decision not to provide their creative and expressive services here DOES NOT resolve the separate STATE LAW issues of whether same sex marriages or civil unions are legal and/or constitutionally required. The extreme examples are often toughest, but they do help to illuminate your logical fallacy. For example, the refusal of a Jewish bakery to design and make a cake celebrating Hitler's Birthday seems to attack the right of individuals to hold political views (neo Nazis, for example), but the bakery holds no sway over such political rights (those rights exist against GOVERNMENT suppression, not popular disapproval). Or the refusal of an African American owned bakery to create a cake celebrating the upcoming centenary of the birth of Klansman, Democrat, and Senator, Robert Byrd likewise seems to attack the right of individuals to hold a political opinion (klansman or other Democrats), but, again, that right is against government suppression, it is not a right to be free from the sensible disapprobation of the public. In fact, if you support the impressed labor and slavery of others against their consciences and agree that expressive and creative acts can be made the stuff of judicially imposed orders, you might check your tyranny privilege. Yes, regardless of race, creed, ethnicity, you likely believe that WHAT YOU BELIEVE is so important that others can be made to suffer economically and in essential liberties in services of your beliefs ... while you never suffer for theirs. That is the essence of tyranny. Second, I too, from time to time, have found the automatic invocation of persecution and the annual cry "War on Christmas" wearying. But I have explained here and elsewhere before, much that is described in terms suggestive of "persecution," is just the product of the pluralism that this Nation has come to prize so highly. If Walmart holds a "Holiday" Sale rather than a "Christmas" one, no one forces me to shop at Walmart if I think that an odious attack on Christianity. Walmart's decision might be the overt outworkings of anti-religious bigotry by its board ... or it might be a kind of inclusivity that makes sense for a business that exists to, well, make a profit. Real persecution exists, including in America, although "persecution" in America is nothing like what is inflicted on Xians BY LAW in many ISLAMIC COUNTRIES, and what is inflicted outside of law, for example, by Hindu extremists in India (where, just a few years back, such extremists burnt an evangelist to death in his car). But the story of the Boy Crying Wolf exists for a reason, and I suppose the drumbeat strains of the wolf cry remain in your ears and serve to dismiss the significant difference between a judicial prosecution for failing to apply one's creative and expressive talents in service of a celebration that offends one's religious sensibilities and, for example, the harm of being told "Season's Greetings" rather than "Merry Christmas" at your local Walmart. Still, you should consider setting aside your tedium with the "Christian persecution" industry in America to consider the likely harm to something you DO CONSIDER IMPORTANT: your own rights of conscience, your own liberties. John Donne wrote that no man is an island separate and entire to himself. You may not find it possible to drum up concern for the bakers at Sweet Cakes, but can you drum up sympathy for the lesbian owned printing company that is forced to print gospel tracts stating that homosexuals are deviant sinners and will suffer eternal damnation? If you can do that, if you can fear for their liberties, their conscience, their freedom, then simply transfer your concern to this matter so that you can grasp the danger. Third, perhaps you doubt that baking a cake constitutes a form of expression entitled to consideration under the First Amendment and State Constitutions. If Sweet Cakes sold "stock" cakes, off the shelf, so to speak (the way one can go to the bakery section of their local grocer and find all occasion cakes packaged and ready to be carried away) but refused to sell their ready made cakes to the lesbian couple, that would, under Oregon law, likely evidence a denial of public accommodations on a ground not protected by law. Those aren't the facts here. Sweet Cakes conducts consultations with its clients before creating their custom wedding cakes. That provides the bakers necessary inspirational ideas from which to engage their creative, design, and expressive talents. The execution of those talents produces a unique cake, evocative (when successful) of hopes, aspirations, emotions, ideas. Even if not terribly successful (sort of the Lord Bulwer Lytton of confections), that would not detract from the obvious creative and expressive aspects of cake design. Now, while you might dispute that such designs -- whether complex such as the wedding cake created for the wedding of Queen Elizabeth and Prince Phillip nearly 70 years ago or more simple ones -- involve expressive elements sufficient to give rise to First Amendment considerations. On the other hand, perhaps you wondered how luddite conservatives missed the obvious expressive value of performance artists sprinkling bean sprouts on their chocolate glazed, nude bodies? It would be a self-inflicted wound to mistake your discounting of the value of a particular message or form of expression with the absence of one. We all depend on the broadest, unfettered right of expression to keep government in check. Here, perhaps, your ox is not gored by doubting the expressivity of wedding cakes, but with foresight, you should consider how your ox CAN BE GORED if you tolerate the government's ability to disregard the expressive components of the arts and artisanal work of others. How the Oregon appellate courts will treat this appeal remains to be seen. Why you should care, I think, is obvious. If you value freedom of speech, if you value rights of conscience, then, like me, you wish Sweet Cakes success in their appeal

Forget the Necessary and Proper Clause, We Need an IDGARA Amendment to the Constitution

I would like to propose an amendment to the Constitution.

It would, of course, be a mere formality. It would, however, make constitutional the excesses, overreaches, violations, and abuses regularly visited by government actors upon the People, upon individuals, and upon States.

The Amendment would be styled, The I Don't Give a Rat's Ass Amendment, and it would read as follows:

Whenever this Amendment shall have been ratified by three fourths of the States, or whenever any government officials needs or desires to pretend that it shall have been so ratified, then this Amendment shall be part and parcel of the Constitution, and shall amend and modify each and every letter, word, clause, sentence, paragraph, portion, provision, Article and part thereof, so that, as amended, every provision of the Constitution shall be understood to read, 'If I care what the Constitution says, then and only then will I abide by its terms; when, however, I find the terms and provisions of the Constitution inconvenient, obstructive, or unhelpful, then I don't give a Rat's Ass what it says, and that's perfectly permissible."

In writing on the Law, Thomas Aquinas suggested that positive law, law enacted by man, should be limited in terms and scope and number, and should comport itself to the conduct of men (as consistent with God's law). The I Don't Give a Rat's Ass Amendment does just that. It avoids the niceties and restrictions that so often are merely forms and shadows, and too often observed in their breach.

If you read in these words a criticism limited to Democrats, then you misunderstand the temper of my criticism.

John Roberts has twice deployed the essential power of the I Don't Give a Rat's Ass principle in sustaining the Obamacare Act against constitutional challenges. Lest you forget, Roberts is a hopeful monster of Republican creation.

Anthony Kennedy has three times deployed the essential power of the I Don't Give a Rat's Ass principle as he causally but casually pushed America toward acceptance of a Supreme Court ruling holding that the framers of the Fourteenth Amendment intended to prohibit limitations on marriage that discriminate against same-sex couples.

George W. Bush deployed the I Don't Give a Rat's Ass principle in signing the Bipartisan Campaign Reform Act of 2002 into law despite his stated conclusion that several provisions of the law were, in his judgment, unconstitutional. He deployed that same principle with his grotesque enlargements of Clinton era surveillance programs when he pushed for, and signed into law, the PATRIOT Act.

Of course, it isn't just Presidents and Supreme Court justices that handily rely upon and invoke the essentials of the I Don't Give a Rat's Ass principle.

Too often, Congress enacts laws of uncertain constitutionality, leaving to the Courts the performance of its own separate duty to judge whether bills presented for consideration satisfy constitutional norms.

The FCC has reared its ugly head to seize the Internet, a medium of communication, and appears intent on deciding how private persons and organization use that medium to communicate. That the Constitution prohibits any law abridging the freedom of speech and of the press simply elicits from Net Neutrality Commissioners an entirely unsurprising "I Don't Give a Rat's Ass."

I hope that you will consider adding your voice to mine.

It is time to relieve beleaguered elected officials and agents of government of the shameful task of pretense, the arduous artifices of obfuscation, bound up in being required to pretend that they care what the Constitution says.

With the "I Don't Give a Rat's Ass Amendment" then we truly can advance to an open, honest, government in the sunshine.

The Judge, the Clerk, The Governor and the General Assembly: How to Understand the Incarceration of Kim Davis on Charges of Contempt

Recent developments in Kentucky have captured the attention of the Nation. Even the ominous stare down between BarryO the Boyking and a melting glacier could not displace the story from the headlines.

There have been many opinions expressed on the topic – from speaking of the martyrdom of Kim Davis to calling for the martyrdom of her – there seems to be no end of opinions on the matter. As with most things, though, many of the opinions rest on a shaky foundation of poor, or no, understanding of important underlying principles of law.
A local jail in Kentucky picked up a new detainee yesterday. Mind you, virtually every county jail in America likely picked up a new detainee or two. But this detainee is a breed apart: not a drunk driver pulled from the mangled wreck of her auto, nor a post-partum-depressed mother that just drowned her baby in the bathtub, not even the local chemist operating a meth lab from his basement workshop. No, this new occupant, Kim Davis, is an elected official, the County Clerk for Rowan County.

Unlike the drunk driver, the homicidal mad-momma, or the meth-matician, Ms. Davis has not been sentenced to a term of years in jail or prison. Indeed, unlike those criminals, Ms. Davis has not been tried by a jury consisting of her peers and found guilty of any crime whatever. Instead, Ms. Davis has been ordered confined indefinitely in jail by a United States District Court Judge, David Bunning.

Davis, a Democrat, ran for, and was elected to, office in Kentucky. Judge Bunning, on the contrary, was appointed to the federal bench by George W. Bush, a Republican. Judge Bunning’s name may ring familiar to some of you. His father, Jim Bunning, served as a US Senator from Kentucky for a couple terms after having served six terms as a member of the House of Representatives from Kentucky. Of course, David Bunning may not have been chosen as a favor by a stalwart Republican president. (I’m sure that all Presidents from both parties only pick the best available candidate and never use their appointment powers to cement relationships or repay favors. Wink Wink Nod Nod.)

So, here we have had a federal judge handling a federal lawsuit over the refusal of a State Court Clerk to issue State marriage licenses.

Now, ordinarily, a clerk refusing to perform a duty of office could be subjected to a suit in state court. There is an old English lawsuit, something called a Petition for Writ of Mandamus. That suit can be filed by affected persons asking a state court judge with the appropriate level of authority to order the clerk to do their duty.

But here we are talking about a same sex couple that tried to get a marriage license. Having been frustrated in that effort, rather than seek an equally valid license from the clerk of another county, and rather than filing a petition for a writ of mandamus with a Kentucky court, the couple, represented by the Kentucky chapter of the American Civil Liberties Union, sued in federal court.

Now please, don’t misunderstand me. I am not suggesting that it was improper at all for such a lawsuit to be filed in federal court. Congress endowed federal trial courts with jurisdiction to hear and decide lawsuits involving claimed violations of federal civil rights. Congress also created a statute-based cause of action for the violation of federal civil rights. Abraham Lincoln addressed the duty of courts to decide cases, in his First Inaugural Address. He said, “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”

So, no, I’m not criticizing Judge Bunning from acting as Judge in the case.

Prior to becoming a disgraced former Senior Counsel for the American Center for Law and Justice, that organization described me (I had nothing to do with how they chose to describe me) as one of the Nation’s leading religious liberties advocates. I have filed many federal civil rights actions as an attorney, representing street preachers, anti-abortion protestors, students treated unequally based on the religious content of their speech. For injured clients, whose recognized constitutional rights had been denied, I have asked federal judges to issue orders stopping government officials from interfering with my clients’ rights. I have asked judges to award damages to my clients for the loss of those rights. So, on the level of general principles I cannot be understood in this post to be claiming that filing the lawsuit in federal court was wrong. I have also represented clients in cases where others tried to stretch federal civil rights laws beyond their design and intention, in order to accomplish a plainly political objective.

That the Judge Bunning had legal authority (what lawyers call “jurisdiction”) granted to his court by Congress is not subject to dispute. That the same sex couples – like other citizens of the United States – are entitled to assert and to prove if they can that their federal civil rights have been violated, is not subject to dispute.

For my purposes today, the questions in dispute are whether Kim Davis should have been fired for refusing to issue marriage licenses and whether she should be incarcerated for contempt of court.

Kim Davis ran for office. The People of Rowan County elected her clerk.

That was an act of popular democracy. Kim Davis, a Democrat, being elected by the People of Rowan County is a matter of some moment. Because under Kentucky law, the Governor cannot simply call her office and tell her she’s fired. Well, he certainly could. But that statement would be followed by a chortle, and perhaps a question, such as, “Been hitting the Makers’ Mark, Governor?” No, the Governor cannot fire her.

The Kentucky Supreme Court cannot fire the Clerk. The Courts of Kentucky are quite jealous of their distinct constitutional stature. They do not brook even the making of rules of court by the legislature – that rule-making is quite common in other States and at the federal level. But, as the Kentucky Courts are quite sensitive to questions of their separate sphere of power and authority, it is well-known to them that they possess no power to discharge from office an elected clerk.

In fact, what the Commonwealth of Kentucky faces with a clerk that is refusing to perform duties of her office is the exact conundrum the American people face with a president that refuses to perform the duties of his office. Because, you see, whether she sits in jail for the balance of her elected term of office or not, the only way that Davis can be removed from office is by impeachment by the Kentucky General Assembly. That is it. She cannot be fired. Stop assuming that she can be. Stop insisting that she be.

Now, as to the question of whether Ms. Davis should be incarcerated for contempt of court, I think Judge Bunning went way overboard in jailing Davis.

I can prove that he did.

I have represented persons charged with contempt. I have read the federal law on contempt and researched the cases and made written interpretations and analysis of it. But I do not need to engage in a fine legal analysis to show why Judge Bunning’s contempt confinement order is a Bridge Too Far. You see, the same sex couples and their ACLU attorneys prove that the Judge went too far. Here is what the couples stated in their petition to hold Davis in contempt:

Plaintiffs do not seek to compel Davis’ compliance through incarceration. Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform, Plaintiffs urge the the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.

You see it, right? “Plaintiffs do not seek to compel Davis’ compliance through incarceration.”

Rather than confinement, the Plaintiffs “urge[d] the ... Court to impose financial penalties[.]”

Question resolved.

The judge, Judge David Bunning, a Republican appointed by George W. Bush has ordered a Democrat, Kim Davis, the elected clerk of Rowan County to be incarcerated. Why? Not because it was asked of him by the Plaintiffs.

We have not heard the end of this matter. The Kentucky General Assembly is highly unlikely to impeach Davis. In fact, if the Assembly does anything, what it is likely to do is change the marriage licensing statute to protect the rights of conscience of county clerks. In the meantime, if Kim Davis does not change her mind, then it will be up to the unjust judge to relent and to release her from confinement.

In fact, as a matter of federal law, Judge Bunning should release Davis because his decision to confine Davis may have violated her rights under the federal Religious Freedom Restoration Act. That’s right. Judge Bunning may well have violated federal law by imposing incarceration as the method of coercing Kim Davis to submit to his will in this matter.

Many readers will recall the teapot tempest earlier this year – it seems ages ago given how the legal landscape shifted in June – when an Indiana pizzeria stirred up a kerfluffle by announcing that it would not agree, if asked, to cater a wedding reception for a same sex couple. Memories Pizza actually closed its doors because of the hostile reaction of some members of the public. Remember that? Back then, one of the hotly disputed issues was the scope of Indiana’s Religious Freedom Restoration Act. Many voices cried out about the injustice of protecting religious freedom if it meant denying two gay men the right to have pizza served at their wedding reception.

For my part, I suspected that ordering pizza for a wedding reception would constitute proof positive that a couple was only faking gay.

In any event, the disputed statute is one modeled on the federal Religious Freedom Restoration Act. That law applies to every federal official and every federal action. So when Judge Bunning put Kim Davis in jail, he should first have determined whether she had a sincerely held religious belief regarding same sex marriage, then decided whether jailing her to compel her compliance with an order that violated her religious scruple constituted a substantial burden on those religious beliefs, and then, finally, if they did, he should have made sure that his acts constituted the least restrictive means to accomplish those purposes.

Where the other side argues that a person should be fined, not jailed, and the judge jails the person, I think the case is easily made that the judge did not employ the least restrictive means to serve the interest in compelling compliance with the court’s order.

So now, like Alice’s tumble into a strange hole, things get curiouser and curiouser, as the clerk defies the judge that defies the law. Judge Bunning was advised that the federal RFRA statute impacted what he did. I read the papers filed by Davis’ attorneys. They cited a federal appeals court decision that threw out 19 contempt citations because the decisions to impose them violated RFRA.

This matter will continue to develop. Perhaps, at some point, Judge Bunning will be brought to task for disobeying federal law. Meanwhile, stop talking about how Davis should be fired. She can’t be fired. Instead, enjoy the show, and the many folks discomfitted by the possibility that every step they take is fraught with opportunities to err.

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.

"Bigot" and Other Words of the Lazy Mind

The word “bigot” is being tossed about frequently in posts by those celebrating the same sex marriage decision, Obergefell v. Hodges.

Seeing that use of the language, I am reminded why a wise parent doesn't allow a toddler to play with guns.  They don't know what they're doing and someone is likely to get hurt. In the case of the careless tossing about of a charge such as “bigotry,” the posts I’ve seen demonstrate bare familiarity with the English language, and definitely show the bully’s penchant to win by sucker punch rather than fair fight.

So then, what is a “bigot?”

Ambrose Bierce rendered the most telling definition of a bigot:

“One who is obstinately and zealously attached to an opinion that you do not entertain.”

A more common, but perhaps not nearly so true, definition found in dictionaries for “bigot” is

"one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance"

Are there anti gay bigots?

Undoubtedly, there are. Just as there are racist blacks, the church undoubtedly has within its ranks those whose hearts are unconverted, who ignore the teachings of their faith, and that, thus, entertain hatred and intolerance in their hearts. The Westboro Baptist Church has gained notorious attention by attending the funerals of soldiers killed in foreign wars, in Iraq and Afghanistan, and claims that God is pleased with the death of those soldiers because of America’s approval of sexual sin.

But that isn't the case of many or most Christians, just as most blacks are not racists.

The Catechism of the Catholic Church, for example, provides a clear insight into the teaching of that Church on the status of homosexual attraction. The Catechism does not teach or condone hatred or intolerance of gay men and lesbian women. Rather, it offers hope to them, guidance for life, and instruction to the Church to respect the dignity of those who are oriented in attraction toward members of the same sex.

Is that “bigotry?” To teach welcoming of the person, to command respect for their dignity, while at the same time adhering to the truth as their lights permit them to see truth?

No, that isn’t bigotry.

To call that approach, “Bigotry,” is to invoke a Humpty Dumptidian power to make words mean what YOU say they mean, rather than what they are known to mean by common acceptance and usage.

Archie Bunker, of course, was a bigot, and, in a humorous twist, so was George Jefferson. We know that there are those who do not look across the divide and see persons whose value and worth is measured in the work of the Cross, where Christ gave His life, not just for heterosexual, but for all human beings. That is what makes a bigot.

But Ambrose Bierce did get this one right. 

Posts charge “bigotry” against those who, in an honest and humble examination of their faith, have concluded that they cannot celebrate Obergefell v. Hodges because it is a decision that proposes a constitutional right that they believe to be a moral wrong.

Their opinion being different than yours might feel like a sound basis for charging them with bigotry, but only in Bierce’s definition does that make sense. They hold their opinion but not yours, after such consideration, thought and examination as they have devoted to the subject at hand. Because their opinion differs from yours, you charge “bigotry.”

One need not share their views to understand the difference between such faith-filled folk and those who drop gay men off tall buildings in Iraq, or those who force gay men in Iran to undergo – involuntarily – sex reassignment surgery so that they have a physical body resembling a woman in pertinent aspects (breasts, no testicles, penis reduction to resemble the female clitoris, and a pouch where possible for sexual contact).

Shame on you, if you are in the business of recklessly charging others with bigotry as a consequence of their views on this question. Your resort to the “bigotry” charge is a shameless attempt to silence those with whom you disagree, rather than to engage them in an honest conversation about your views and theirs. Why do you blind yourself in your bullying rejection of the right of others to disagree with you? Why do you choose to bully others by calling them the most dread of names, "bigot?" You only have two eyes, can you really afford to poke one out in this way?

Brown Baggin' It: Supreme Court Justice Style

Scalia to Kennedy: Your Opinion is Embarrassing

Perhaps the best direct insult written by one justice about the opinion for the Court by another Justice came today in the dissent of Scalia. My excerpted version of his dissent, included below, omits the footnotes; those are, virtually entirely, reference notes only. But this beaut is in there too, so I present it at the top:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

I will write further on the case and its implications. For now, the dissent of Justice Scalia is a clarion cry of warning about the death of the Republic at the hands of our black-robed mystics:
______________________________________________________________________

Scalia, dissenting

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage  evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

I

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage.

Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.2

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire.

These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12

We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15

The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.”

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination.

The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

II

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.  And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

* * *

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

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.

When the Gods of The American Olympus Speak: The Uncertainty of Rights

"We hold these truths to be self-evident."

Do we? Do you?

The enterprise of our liberty, our independence, as a people, from Crown and Parliament, depended on the earnestness of those who proclaimed that they held those views. If they were not, as free, moral, agents convinced that they and their fellows were possessed of a body of rights that they could not even agree to surrender (inalienable), then their pretense of offense at the tyranny of the English Crown and Parliament was just that, pretense on pretense. Rather than conclude against evidence that the Declaration of Independence was an insincere statement posturing about aspirations, I take Jefferson and the signers of it at their word.

Who we are, as a People, can be stated in many ways. A law professor with whom I occasionally debated back when newsgroups were a key way to communicate on the Internet often referred to America as the Protestant Empire; that phrase succinctly stated the exclusivity of the Protestant view shared among the principal founders, and among the States, throughout much of our Nation's history. Of course, others use the term "melting pot" and identify the Nation as, essentially, mongrels, the world's "mutts" if you will.

Certainly there will be great disagreement in such categorizations. But the Declaration speaks for me. We are a People convinced that each of us, at the hand of Nature and Nature's God, are endowed with rights that belong to us in time before there is even a political body such as this Nation to get into the business of "granting" such rights. In other words, our right to live, it does not exist because our particular State and the United States have told us we may live. Likewise our rights to liberty and to pursue happiness.

Still, the Declaration, while it gives us an identity as a People, does not state a set of organizational principles by which a common enterprise such as a political community can be stood up and can be maintained.

For those principles, we have looked to Constitutions, first, the Constitutions of the States (as they preceded in time and right the general government) and second, the Constitution of the United States. These documents frame our governments. They confirm powers of the government (or in the case of the federal government, they confer those powers on the general government). They acknowledge the existence of, and inviolability of, the rights with which the Declaration says we are each endowed.

Throughout the entire course of our constitutional history, a struggle has existed over the question of how to govern the whole body of us. Lincoln spoke to this question in his First Inaugural Address. Remember, to render this address on the assumption of his duties, Lincoln had first to sneak into Washington, DC, coming from Illinois, by rail, through the border State of Maryland, which never seceded but which had preferred his opponent, John Breckenridge, a Southern Democrat, in the general election. So, in his inaugural address, with threats and moves toward secession spoken openly, he made his appeal for Union.

In that appeal, he explained how the conflicting views created issues of how the Nation could be governed. In his view, secession was the minority opinion. And, as he viewed it so, he explained that it was not, by any sense of political power or duty, entitled to a permanent circumstance of governing over the majority:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Ultimately, what we have is not a finely tuned machine, with exceeding close, "German engineering" tolerances. Instead, we have republican (little "R") government by which, in fact, our law and policy is made by representatives of the people, not the people themselves. Moreover, that republican or representative government does govern by principles of majority rule. With respect to the choices to made in laws to enact, laws to repeal, and the like, the essential governing principles are two:

First, the majority is free to make laws, or to repeal laws, touching upon the host of human experience and interactions, so far as, and to the extent that, the majority chooses to do so.

They can adopt a law requiring that leaves be bagged and placed at the curb. They can pass a law requiring that cars undergo an annual safety inspection. The only requirement preceding a legitimate exercise of this general right of legislative majorities is that there be an underlying rationale for their law that survives a minimal kind of scrutiny often called the rational basis test. So, for the leaf bagging requirement, a county commission might pass just such an ordinance after hearing testimony from the rainwater runoff commission that leaves piled in street-side gutters result in clogged rainwater drains.

Second, the majority is barred from making laws in selected categories.

The majority cannot make laws that target certain kinds of minority groups for disfavored treatment (so, for example, they majority cannot require that all Asians register with the police department, or that all Norwegians register with the Farm Bureau). Such laws violate the principle of equal protection of the law. The majority could, for example, pass a law requiring EVERYONE to undertake some ministerial act, for example, attend school. In fact, such laws are widespread, rampant, familiar.

The majority is also barred from making laws that burden the exercise of certain essential, political and civil rights, rights that we often associate with the Bill of Rights, such as the right to freedom of speech, the right to free exercise of religion, the right to keep and bear arms. It doesn't matter that the Congress or your State assembly pass a law that restricts every one's right to gun ownership -- as opposed to a law prohibiting only Caucasian females from owning -- it is the underlying, affected right that is of particular concern and that is particularly prized and protected.

Given that background, and as we are, or may be, on the cusp of a stunning decision of the Supreme Court on a question of law that has always been, until in recent time, readily recognized as belonging to the sphere of States' powers rather than the federal government's powers, I think it of great importance to see how a nation is being held hostage to the opinion of, essentially, a single man.

The American Olympus

Let's start with this atmospheric:

Here are the remains of the Parthenon, the Temple of Athena, the Greek Goddess of Wisdom. By legend she sprang full grown from the head of Zeus. Nearly two and a half millenia later, the Athenian devotion to her wisdom is evident in the structure.

Yes, damaged. Crumbling. But who isn't after a couple millenia. Now, compare that remarkable temple with this one, the United States Supreme Court, which was constructed in the manner it was, for the purpose of creating a sense of it as a judicial Olympus:

Comparing the two leaves you the impression that the only real difference is that the Supreme Court required more space for staff than did Athena.

And, it isn't that the building resembles a Greek temple, accidentally. Cass Gilbert, architect of the structure, "literally conceived of [it] as the temple of justice...." "Finished and occupied in 1935, the Supreme Court is meant to resemble a great marble temple."

Literally, the face of the Court to the Nation is that the Court is our American Olympus. With the passage of time, and the accretions of power within our constitutional framework of government, the Court's decisions are often difficult to perceive differently than the rolling of thunder and bolts of lighting from legendary Olympus.

If you haven't listened to the oral argument recently had before the Supreme Court on the cases involving the claimed constitutional right to "marriage equality," the legal principles and language are not so arcane, so full of legal jargon, as to be beyond comprehension. You could, if you wished, listen to those arguments, here (part one) and here (part two). It's a good bit more work to wade through the briefs and the many additional filings by interest groups supporting and opposing the claimed constitutional right to marriage equality. But were you to do so, you would immediate recognize that there is one "pretty girl" in the "gym" of the Supreme Court's argument, only one justice for whose vote every legal "suitor" pines and yearns: Justice Anthony Kennedy.

Kennedy, just like moderates preceding him, is often targeted by the authors of briefs and the presenters of arguments. Not targeted in a bad sense, but targeted in the sense of being the one to be convinced, to be wooed in words. And the media reports recognize that this case likely depends on Kennedy's vote. Here are some examples of such media reports:

The decision is likely to come down to the court's key swing voter, Justice Anthony Kennedy, or Justice John Roberts, who once sided with the liberals in the case that upheld Obamacare.

He said the more conservative justices - Antonin Scalia, Clarence Thomas and Samuel Alito - are likely to rule against gay marriage. And the more liberal justices - Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - are expected to support it. Feldman said Justice Anthony Kennedy and potentially Chief Justice John Roberts could be the deciding votes.

The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights. In three key decisions since 1996, Kennedy has broadened the court's view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.

All reports from the argument support the likely scenario that Justices Breyer, Ginsburg, Sotomayor and Kagan will vote to overturn the lower court decisions in the cases at the Court on the ground that the Constitution guarantees the right to marriage equality, and that Justices Roberts, Scalia, Thomas, and Alito will vote to affirm the decisions now pending before the Court. (Of course, we are supposed to reason that even though Justices Ginsburg and Kagan have officiated at same-sex marriages, their decisions on the legal question will proceed from constitutional grounds rather than personally biases.)

That leaves for prognosticators the all important question: how will Kennedy vote? 

Will Kennedy join the progressives on the Court and stunningly overturn the understood two hundred years plus interpretation of the Constitution and one hundred forty years reading of the Fourteenth Amendment, finding a right to marriage equality that guarantees that members of the same sex have same right to marriage as was previously recognized only for opposite sex couples? Or, will Kennedy join with Roberts, Scalia, Thomas and Alito, and hew the traditional lines of the Constitution?

No one, except the Justices and their staff members involved, has any idea for sure now. But shortly we will all know. And then, no matter how the case turns the howling will ensue. If Kennedy rejects marriage equality in this go-round, even if he leaves open the pathway toward its eventual recognition, the supporters of marriage equality will undoubtedly decry the injustice that they perceive in such a construction of the Constitution. If Kennedy joins the progressive justices on the Court and finds a constitutional right to same sex marriage, then the hue and cry from supporters of traditional marriage will, likewise, erupt.

So now, I am again thinking of the President I hate to love, the President I love to hate, Abraham Lincoln. And I'm thinking about the Nation that he "inherited" as President. Then, we were a nation fracturing over slavery, and reeling from a Supreme Court decision that rejected the power of Congress to restrict slavery in federal territories, a decision that denied the constitutional person hood of Africans. Then, his First Inaugural Address, he spoke to near half a Nation that hung precipitously on the cusp of secession, and to over half a Nation that had seemed content to leave slavery where it found it, maintain Free Soil principles where they established them, and work toward political solutions when possible. His address served as his appeal to heart and mind against the propriety of secession, and thus against the principle, as he would see it, of minority rule.

Today, his words would be directed to those who advocate marriage equality. While same-sex marriage has become legal in the majority of our States, the bulk of those changes were by reason of federal court decisions declaring State laws or State constitutional provisions restricting marriage to opposite sex couples to be unconstitutional as violations of the Fourteenth Amendment. In the absence of those judicial rulings, the vast majority of States prohibited anything other than opposite sex marriage. Lincoln, then and now, would urge that the better, more secure guarantee of the right for which they are contending through the Courts.

Remember that the Nation learned this lesson through a Civil War. An ill construction given to the Constitution by the Supreme Court, the election of a Radical Republican, and the feared loss of sovereignty in southern States, together with the moral question of slavery, precipitated that war. And that war created the conditions by which three amendments -- prohibiting slavery, guaranteeing citizenship to the newly freed slaves, and providing a right to vote -- could be added to the Constitution. And while the work of perfecting those repairs is not done, it has not been left mostly undone.

And that's why I keep explaining in this blog, and elsewhere. I know many stridently oppose redefining marriage to include same sex marriage. I know some fervently yearn for recognition of marriage equality under the Constitution. But neither group can rest securely in the outcome for which they hope when the outcome is granted by the oligarchs of the Supreme Court. The securest means of guaranteeing a right or preventing a wrong, in our constitutional society, is to AMEND the Constitution. Nothing else is a substitute for doing so. Otherwise, we will continue to wake up in Kennedy's America, or another Justice's America, and not our own.