Why Americans, irrespective of position, ought to cringe over Obergefell

SPQR
Senātus Populus que Rōmānus

Translated, the Senate and People of Rome. 

The motto of the Roman Empire, whose legions marched under that banner in service of its Emperors.

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This isn't a post about same gender marriage.

If a person wants to debate that, go elsewhere, as this isn't that post.

This is a post about a court usurping legislative power.

As anyone following the news well knows, in a five to four decision, the United States Supreme Court decided in Obergefell v. Hodges that the United States Constitution, which doesn't include the word "marriage" anywhere within it, and which was written at a time when same gender attraction was uniformly regarded as a horrible personal vice (but before the word "homosexual" was coined*), guarantees the rights of people with that inclination to contract a marriage to a person of the same gender.   The decision, which everyone knows is not really based on a true reading of the Constitution but on a liberal interpretation of what ought to be done, is being widely celebrated by those who have been backing this fairly radical social experiment.  In some ways the most telling comment in the case was the following:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

That's innocuous language presents a stunning proposition.  Rights come not from history and tradition, and the court doesn't even mention the Natural Law, which is where the drafters of all of our original organic documents understood them to come from.  No, they "rise" from "a better informed understanding of how constitutional imperatives define a liberty. . . "  And who has that "better informed understanding"?  Not the national or state legislatures, apparently, which we understood to be able to legally create rights and privileges.  No, nine, or in this case five, mostly very old people who have very little connection with the average lives of Americans, who are of very concentrated principally Ivy League education, and of very limited professional experience, whose rights they purport to be creating, or which they may be destroying.  Or, as Chief Justice John Roberts noted:

Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.

Or as the much castigated Justice Scalia stated, in keeping with the anniversary we note here today:

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.

Those to whom this new right is conferred, perhaps most of all, ought to pause to consider what has occurred. 

Indeed, it ought to frighten every American.  There ought not to be a parade by any group of people on the street, there ought to be some really sober reflection on what's occurred, as its really scary.  As Justice Alito noted:

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate

A common claim is that this now makes same gender marriage "the law of the land".  And so it does.  But the next common claim, that this has been decided "forever" (even excusing the human folly to believe that the trends of their own era or even the governments and nations of the era in which they live are somehow permanent), is far from true.  Many Supreme Court pronouncements barely outlive the justices who wrote them, and if history in this country has shown us anything, there isn't a single Constitutional "right" of any kind that isn't subject to being rewritten, reduced, and eliminated.

And this has proven to be most particularly the case concerning social decisions, which are so thinly based on the law in the first place.  Indeed, Justice Roberts cited a blistering legal analysis of the folly of Wade doing that, by none other than Ruther Bader Ginsberg, in his dissent.

It's easy to see why.  Nobody likes to have the vote taken from them.  When the vote is taken in a coup, the losing side sits and stews until it has the chance to vote again, and that chance usually comes.

The case that this is most analogous to is of course the legendary Wade decision which, at the time, overrode the law of many states and advanced a controversial view that had gained traction in some states concerning the point at which life began vs the rights of an individual.  The case concerned a massive metaphysical and philosophical question of the type that no court can really handle, and the Court handled it really badly.  The case did indeed seem to have worked a permanent change for about the first ten years, or maybe even twenty, of its existence, but after that, the weak logic of the case began to erode on its own accord.  The only thing that keeps the decision in place at all is the basic fact that everyone feels the current five to four split on the Court, in which Anthony Kennedy is the repeated tie breaker, probably operates so that if the matter returned to the court, some preservation of its holding would remain, but not all of it. The whole case might, in fact, fall, and legislatures now have little trepidation about passing laws in this area which twenty years ago they would have feared to.  Even liberal publications, such as The New Republic, have urged its complete repeal, recognizing that the main function of the decision has been to make their view appear to be anemic and anti-democratic, while the opposition has effectively organized and has taken it on. What political liberals of the era deemed in impossible has become a reality, the decision holds by a thread, most people don't like the impact, and in the society, the opposing view has become the majority one.

My prediction, which I know is contrary to the current belief, is that the same will effectively happen here.  The Obergefell case is really part of a long standing trend in American law which has weakened the institution of marriage and what being married means.  Without going into it in depth, the first blows were really struck when no fault divorce laws became common in the United States, making obtaining a divorce much easier but also making it much easier for people to escape responsibility for everything in this arena.. The second came when social programs had the unintended effect of allowing men to easily escape the burdens of caring for children they hadn't planned for.  Combined, the institution of marriage has been eroding for some time.  This most recent development really reflects that, as it reflects a current faddish view of marriage that it exist in order to bring fulfillment or happiness, or has something to do with love.  All of that might reflect the conditions that marriage may bring (or might not), but it doesn't go to the reason for the institution, which exists in order to promote the relationship between couples that are engaged in activities that naturally lead to children.  That's in the interest of the state, the rest of it really isn't.  That fact has indeed begun to come back into focus in recent years, but like the back side of a wave, it hasn't risen to the crest yet.  The crest of the wave is still at the happiness and fulfillment peak, although certainly not exclusively so.

Where this all leads isn't really yet known, and whether a person likes the reality of the history of marriage or not, or feels it should be something else or not. as a legal matter, the facts are what they are.  Now five of the justices of the U.S. Supreme Court have terminated the debate, they think, and chosen to force a social view on a nation that was debating it.  If the current trend had held, ironically, the view now forced on the nation by judicial fiat would have become the dominant law anyhow, by legislative process.  Now, however, the court had killed the legislative process and taken the matter out of the hands of legislators and voters.  Why they did this, when they clearly did not have to, is a question that has to be asked.

That's happened, of course, before, but when it does, the trend is uniformly bad for the nation. Those who are deprived of the vote feel, justifiably, cheated, and they don't accept the view that the "majority" wants this.  They struggle against it.  And in that process, those who have achieved victory by judicial fiat at first loudly proclaim their victory, and then loudly complaint about those who will not accept it.  If the prior examples are applicable, they then begin to lose ground, although its usually a slow process.

I'm not sure that the process will be that slow here.  The Obergefell decision comes as close to a judicial coup in the United States as we've ever seen.  We've never had an instance in this country before in which the Court has actually ruled on a definition of an institution that most humans participate in, which is so fundamental to us, and which grossly predates the existence of our own country. That they'd do so is stunningly arrogant, even if you view that the achieved result is the one that should have happened legislatively.

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Liberty, Equality, Fraternity 

The battle cry of the French revolution, and the ideals under which Imperial France under a military dictator marched under the revolutionary Tri Color on Europe. 

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The common wisdom right now is that the public will now accept this, where it hadn't.  I doubt it will, and already those who appeared defeated are beginning to resist and rally, with proposals that will have to be taken seriously in short order.  A real reaction is likely to be a massive level of contempt for a Court which was already not particularly well liked by much of the nation, and which now shows itself capable of acting in a Napoleonic fashion.  Like the little emperor, who marched on Europe in the name of liberal ideals, liberty, quality and fraternity, five robed emperors, likewise sitting for life, have decreed that legislatures don't matter in something in which they very much do. And, just like the little emperor, these emperors amazingly do so in interrupting what was seemingly a trend in the same direction they went anyhow.  They clearly need not have done it under the law, and even if they felt their decision to be a socially correct one, they could have waited for it to unfold.  A person doesn't need to be hasty in overturning a norm that's as old as human history.

Unless, of course, you are at death's door yourself and feel that the world cannot progress without you.  Does the Court feel that way?  I hope not, but at least Ruth Bader Ginsberg has made a statement reminiscent of  Charles D'Gaulle to the effect that if she was to step down, who would replace her. Well, that likely wouldn't be a problem. And frankly, if she's to keep the balance of the body as it is, she probably should have done that earlier in President Obama's administration when a liberal replacement was assured.  Now that would be pretty questionable.

Indeed, one thing we know for certain about the current Supreme Court is that the current nine members cannot possibly all live through the next Presidential term.  Death will claim at least one of them, if not more (and it will probably be more).  Four of the justices are over 70 years old, with Ginsberg being 82.  Only one is under 60.  Three out of the four justices over 70 voted in the majority which effectively means that the oldest section of the court, and the section most likely to be removed by death or illness, is the majority (but the youngest justice also voted with the majority, it should be noted).  Three out of the four in the minority voted against it, with the second to youngest on the court included in that group.  Should all nine live through the next Presidential term, particularly a two term Presidency, would be a stunning run contrary to the law of averages.  It'd be more likely that one or two of them will pass on to eternity during that time, and indeed given the really geriatric nature of this court, we could see a huge turnover in the next eight years fairly easily.  Only one of them is really in the demographic group where we're truly surprised if they pass.

So, what's that mean?  Well, just as the court's decision in District of Columbia v. Heller, decided in 2008, has spawned repeated court cases as to its meaning every since, with no end in sight, in spite of its seemingly clear text, this decision will inevitably do so as well.  When some county clerk refuses to issue a marriage license on moral belief grounds, and gets sued, will that clerk be able to argue freedom on conscience?   We're going to find out in the courts. When a judge refuses to preform a marriage and gets sued, will he be able to claim the same?  We're going to find out.  When a case presently on hold in Utah on polygamous marriage goes to decision in the next year (and it will now), and others like it follow, will that be governed by this decision (I can't see how it could not be).  When an immigrant migrant from North Africa claims a cultural right to marry a 14 year old, or perhaps two, or brings in a child bride,will that be protected if state law has prohibited it, but the culture he's part of consents? We're going to find that out too.  And if it is the case that a man married to a child bride in Afghanistan can import his 14 year old bride, does that mean an American man can demand the same "right".  Well, a reasonable holding of this decision would be yes, and at some point I suppose well find out if it does.

And, as always, what will happen, at a bare minimum, is the Court wills slowly start with the "the decision didn't mean that", with a series of specious distinctions.  They'll look bogus, because they will be.  In the meantime, the debate will evolve with "we told you so, we told you so", and there will be no good counter to it.  The Court, in turn, will look absurd, and once that's the case (and we've been through some bouts of that since the early 1970s), nobody respects what it has to say save for the fact that the Executive branch can back the opinions up with action, if they feel inclined to.  

But, and perhaps quite likely, if  the next President is a conservative, and Ruth Bader Ginsburg passes, or Kennedy, the next Supreme Court justice is unlikely to really believe that Obergefell means anything and either repeal it or define it out of existence.  People will say, "oh no, they won't reverse themselves". Read the descents, they most certainly would.  Justice Scalia, who is another octogenarian on the court it should be noted, so disdains the majority opinion that he's noted it again in a dissent for another case, an extraordinary thing to do.  And justice Robert's dissent flatly stated that, in regards to the decision, "The Constitution had nothing to do with it."  So this could be returned to the legislatures, after having been taken away from them, quite easily.  My guess is that some state legislatures in some places will start reacting nearly immediately in any event, which makes such a reversal all the more likely. Indeed, the Attorney General's Office of Texas has already indicated moral support for at least clerks and judges who refuse to go along.

And it should be returned to the legislatures, frankly, to preserve the Court.  The point of a democracy is to be democratic.  A person who doesn't like the results of a vote doesn't have to like it, but at least that person can argue for another day. The point of the Court here is to keep legislatures from acting unconstitutionally without restraint (like an Athenian democracy) but not to legislate itself, as its effectively done here. The victim of a coup, moreover, stews in bitterness until their day comes.  And that day always does, sooner or later.  And when that counter reaction comes, the oppressing institution gets slapped.

When that comes, those who leaped on to a bandwagon that preempted a democratic development rarely fair well in preserving their argument.  In pre World War Two France, for example conservative right wing political movements were taken serious and participated democratically.  When Germany supplanted their government with one more of its liking, they were quick to sign on.  It wasn't that the French right was uniformly fascist, or even uniformly wrong, but having allied themselves with that which seemed give them a quick result, the result of World War Two has been something they have not been able to overcome.  "Pro choice" elements in the US were so over comforted by their Supreme Court victory in 1973 that they've never been able to learn how to act really democratically once the debate resumed. Here, a movement that was doing well in the polls will now be associated with a the actions of a geriatric Supreme Court.

Already in this area there's been a proposal that Supreme Court justices should be made to stand for retention.  Maybe they really ought to, or be subject to some sort of oversight short of impeachment.  Other concepts that are not far from the surface would be to impose a mandatory retirement age on the Federal bench, which frankly I'd be in favor of, as I can't grasp why nine people from some generation that the majority of Americans are not, should hold such power.  Justices could be selected by some other process as well, and I wonder if that will come about.  There's no reason that they couldn't be rotated out of the Circuit Courts on an annual basis, thereby eliminating the need for a standing Supreme Court at all.  Or the process could require input from the states.  Or, frighteningly, Congress could act simply to deprive the Supreme Court of appellate review of the laws which it passes or even specific laws, or just things it doesn't want the Supreme Court to review, as, while little realized, this is within the power of Congress.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Quite clearly, while this Court would be likely to attempt to attack it and say it isn't so, Congress could in fact pass laws and provide that the Supreme Court had no appellate review.  If the Court determined that it did, and it would be likely to hold that it did, then what? The only reason that this hasn't happened to date in our country's history, is that Congress has tended to respect the court, and the court's been careful not to provoke Congress. They've done that now.

None of this appears likely right now, but any time the Court makes a decision like this, they start to be in varying degrees.  Indeed, this opinion aside, it ought to be apparent that a Federal judiciary made up of life time appointments is more than a little bizarre.The thought that lawyers who formed their views decades ago and who are in the age in which mental deterioration is the norm should have absolute power over the affairs of the nation makes no sense whatsoever.

In the meantime, Americans in general ought to be worried.  Our politics have descended over the past twenty years to where our legislatures, including the national one, are not functioning as well as they should be.  The Democratic and Republican parties are increasingly at odds with each other, and increasingly more extreme (although here, as with some other social issues, they tended to be heading towards each other). The Supreme Court has now issued a decision that strays badly from the law, as the law would have been understood in any former area, and now sets itself up as an un-appealable legislature of social change.  That's outright scary.

And because it's scary, this is appearing on the July 4 weekend.  On that date, the Continental Congress, in rebellion against the Crown, declared the nation to be independent basically because the English Parliament had seemed to usurp the power of the sovereign colonies by taking acts without consulting the assemblies of those colonies.  The "intolerable acts" were varied, but that was the gist of it.  Quite frankly, if you look back and read them, a lot of the things they were doing that seemed intolerable were not all that bad, including taxing the colonies to help pay for a war in which the Crown defended them.  But the not consulting part was pretty bad.  Now, nine, or rather five, lawyers in a body that has been appointed for life has essentially done the same thing.  When Chief Justice John Marshall crafted the early court to have judicial review of acts of Congress, he was careful not to anger it, as he knew that was dicey.  These justices have perhaps assumed too much if they've assumed that they can now act so far that Marshall would be horrified, and I'd be surprised if, long term, this decision doesn't either mark the beginning of a Cesarian court and a retreat of American democracy, or the point at which the roles of the Court began to massively erode in favor of a more Athenian democracy.

Either result is really scary.

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Equal Justice Under Law

The motto of the United States Supreme Court.  

Interestingly, on the "Temple" of Justice, where the United States Supreme Court sits, these words appear immediately above a statute. . . of a Roman Centurion.