Senator Ted Cruz is a faux constitutionalist

Senator Ted Cruz is a faux constitutionalist. That’s a person who alleges allegiance to a constitution as they imagine or wish it to be, rather than as it actually is. Cruz’s constitutional argument against gay marriage is proof.

The logic of Cruz’s argument against the Supreme Court ’s  gay marriage decision in Obergefell v. Hodges goes like this: 

First premise: The U.S. Constitution established a federal government with limited powers and that powers not delegated to the federal government are reserved to the states under the Tenth Amendment. 

This is largely true, but not completely. Under the Tenth Amendment, “powers not delegated to the United States . . . are reserved to the States respectively, or to the people.” (Emphasis added.)  This being said, I would agree with Cruz to the extent that marriage in 1791, when the Bill of Rights was ratified by the states, was a state prerogative with the following caveat. The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—leaving open the issue of whether gay marriage is an unenumerated right.

Cruz’s second premise goes something like this:

The Supreme Court  exceeded its Article III authority in Obergefell by acting like a legislative body in deciding that state laws limiting marriage to one man and one woman were unconstitutional and that same-sex couples have the right to marry.

And Cruz’s third premise is that:

Under the Tenth Amendment, only the states have the power to determine who can marry. 

Accordingly, Cruz concludes that:

The Supreme Court erred in its Obergefell decision.

As a Harvard law grad who clerked for Chief Justice William Rehnquist, Cruz knows he’s wrong.

First, Article III of the Constitution expressly grants the judicial power of the United States to “one supreme Court, and in such inferior courts as the Congress” may establish. The 1803 landmark decision of Marbury v. Madison established the principle of judicial review in the United States. The essence of judicial review is that the judicial power includes the power of courts to determine whether laws—either federal or state—are consistent with or contrary to the Constitution. Laws which are contrary to the Constitution are unconstitutional and invalid. Politicians and judge-want-a-bees may disagree with specific Supreme Court rulings but Marbury is “settled law.” In other words, the Constitution itself—as part of the balance of powers—granted the courts the power of determining the validity of a law. Therefore, the exercise of that power by the courts is not a form of tyranny.

And second, Senator Cruz conveniently ignores Fourteenth Amendment which was ratified by the states in 1868. Among other things, the amendment prohibits states from depriving “any person of . . . liberty . . . without due process of law” or “equal protection of the laws.” The Supreme Court simply held the obvious in Obergefell that state laws prohibiting same-sex marriages while permitting opposite-sex marriages denied the plaintiffs both due process of law and equal protection of the law. [I wonder whether Senator Cruz would argue that the Supreme Court’s 1967 decision in Loving v. Virginia was wrong. The Loving decision held that Virginia’s law prohibiting mixed-race couples from marrying violated the Equal Protection Clause of the Fourteenth Amendment.]

There is nothing to debate—the Fourteenth Amendment superseded the Tenth Amendment with respect to marriage. Marriage is a fundamental right which the states cannot prohibit without a “compelling interest” and the states have not asserted any compelling interest to either limit marriage to one man and one woman or to deny same-sex couples the right to marry.

It is my hope that Senator Cruz will bring his understanding of constitutional law up to date and quit demagoging to his political base. Otherwise, if Cruz were to be elected president, we could not expect him to “preserve, protect and defend the Constitution of the United States.”

Robert V. Ritter

Gay Marriage -- The Supreme Court Will Rule "It's Time Has Come"

I had the privilege of attending Tuesday’s oral arguments at the Supreme Court involving gay marriage.  Eventho I got to the Court more than 3 hours before the arguments began a little after 10 a.m., I was number 83 in the bar line and had to listen to the arguments from the attorney’s lounge. Four cases have been consolidated and are collectively go by Obergefell v. Hodges.

The arguments by the states’ attorney—John J. Bursch—were terrible. Perhaps his misfortune was the result of the states not having a rationale (i.e., valid) justification for denying same sex couples the right to marry and he was forced pick a lame excuse out of a bag.

What was the “rationale” Bursch offered as a justification for denying gays the right to marry? He argued that the states have a right to limit marriage to heterosexual couples because the primary purpose of marriage is to ensure that children grow up with their biological parents! Of course, if that was real reason, then states presumably could deny marriage licenses to any man-woman couple who do not intend to have children or could not have children because of infertility. Could a state annul marriages which don’t produce offspring in 3, 5 or 10 years? I suppose the argument could also support outlawing divorce (even in domestic violence situations) because, in the states’ view, the best interests of the child is to keep the child with his or her biological parents. And adoptions? Forget them. Any exceptions? (Gee, your Honors, please ask another question.) Thus, the states one-man, one-woman “class” was over inclusive.

Bursch conceded that a same sex couple could provide a child with a nurturing home environment. Isn’t that the primary consideration for the best interests of the child? In fact, Bursch failed to provide any evidence that a gay parents were inferior to straight couples in meeting the needs of their children. So I felt the state’s case was a big ZERO. On a positive note, Bursch didn’t argue that the 14^th Amendment—which was adopted during the Reconstruction period in 1868—only applied to discrimination based on race.

Justice Kennedy, who is widely believed to be the swing vote, raised the “tradition” card—that marriage has been defined as being between a man and a woman for over a millennia. Sounds a lot like Newton’s First Theory of Motion: an object in motion will stay in motion unless acted on by an external force. In other words, it’s permissible to ignore the rights of gays because we have denied them their rights for a very long time. That’s a sham legal purpose if I ever saw one. Indeed, nowhere in the Constitution does it say that tradition trumps due process. The good news is that the Kennedy recovered later in the argument—perhaps remembering that he wrote the majority opinion supporting the rights of gays in United States v. Windsor (2013) (holding DOMA unconstitutional), Lawrence v. Texas (2003) (holding Texas’s anti-sodomy statute unconstitutional) and  Romer v. Evans (1996) (invalidated Colorado’s Amendment 2 targeting homosexuals). Bottom line, count Kennedy in on holding state laws limiting marriage to a man and a woman.

I was particularly disappointed that Solicitor General Donald B. Verrelli, Jr., didn’t argue that the right of gays to marry is a “fundamental” right.  It would have been an easy argument to make, inasmuch as, the Supreme Court has held fourteen times since 1888 that marriage is a fundamental right. (For a list of the cases, visit http://www.afer.org/blog/14-supreme-court-cases-marriage-is-a-fundamental-right/.) (I suspect that Verrrelli was trying to tone down the government’s position in an attempt to make the case for gay marriage more palatable for justices sitting on the fence.)  Instead, the United States took the position that gays have a right to marry under the Equal Protection Clause—which is reviewed under the lower standard rational basis test.  While the outcome in this instance may ultimately be the same, I believe that Verrelli cheapened gay rights by not arguing both. I would note, for example, that the Court in Loving v. Virginia (1967) held that Virginia’s anti-miscegenation statute violated both the Due Process and Equal Protection Clauses of the 14^th Amendment.

I anticipate that the Court in late June will avoid the fundamental right issue and rule narrowly that denial of marriage licenses to gay and lesbian couples violates the Equal Protection Clause. However, I also anticipate that one or more justices will write a concurring opinion voicing the fundamental right position. Less clear is whether Chief Justice Roberts will join Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan—particularly if he wants to leave a legacy as being an eminent chief justice supporting the core American value of equality.

The Answer to Christian Preference is "Blowin' In The Wind"

This afternoon I was listening to Bob Dylan's 1962 song Blowin' In The Wind. One part of the lyrics hit a particular chord for me:

   How many years can some people exist
   Before they're allowed to be free?

   Yes, and how many times can a man turn his head
   And pretend that he just doesn't see.
   The answer, my friend, is blowin' in the wind,
   The answer is blowin' in the wind.

Dylan thought the answer to our peace, war and freedom problems were simple, yet hard to grasp -- like a piece of paper blowing in the wind.

Similarly, the answer to discrimination against LGBTs and Atheists in America is quite simple -- end discrimination.  After all, equality is a core American value.

Unfortunately, the realization of equality is incredibly elusive; it is blowing in the wind. People talk equality, but many have a psychological need to feel superior to others and manifest this thru discrimination and domination.

On a positive note, 2014 was a banner year for progress in support of gay marriage with 37 states and the District of Columbia now issuing marriage licenses to gay couples.

Atheists continue to suffer the indignity of Christian preference throughout the nation -- from "In god We Trust" on our coins and currency to oaths with "so help me god" to the Pledge of Allegiance with "under god" -- all not withstanding the First and Fourteenth Amendments prohibiting preference of one religion over another, or religion over nonbelief.

53 years after Dylan's Blowin' In The Wind, heads are still turned and the answer to discrimination blowin' in the wind.

Judge O'Scannlain on the Wrong Side of Gay Marriage

Judge O’Scannlain of the 9^th Circuit has fallen out of the boat in declaring “we have ignored another circuit’s reasoned contribution to the [gay marriage] debate.”  Latta v. Otter (9th Cir., pet. for rehearing en banc denied, January 9, 2015) (Scanlon, J., dissenting).  Rather, it is the 6th Circuit and Judge O’Scannlain that have ignored the clear mandate of the U.S. Constitution.

First, I would disagree with Judge O’Scannlain’s characterization that the 6th Circuit’s decision in DeBoer v. Snyder (6th Cir. 2014) is a “reasoned contribution” to the debate.  Here’s why.  Equality is the quintessential core America – “all men are created equal.”  Admittedly, the Declaration of Independence is not our charter of government and equality was not firmly embedded in the original test of the Constitution.  It took the Civil War and the 14th Amendment to steer us back to the legal mandate of equality: “nor shall any State deprive . . . any person . . . equal protection of the law.”

Second, Judge O’Scannlain apparently believes that minority rights are subject to vote and equal protection of the law does not apply to gay persons.  He and Christian Dominionists are wrong.  The purpose of the Bill of Rights and a number of other amendments was to protect minority rights by removing them to popular vote.

Third Judge O’Scannlain’s characterization of a “clear circuit split” is stretched.  The 6th Circuit’s decision is an outlier among the circuits.  There is nothing to be gained at this point by the 9th Circuit hearing Latta v. Otter and companion cases en banc.  Moreover, gay marriage cases are already pending before the Supreme Court.  Thus there is no need at this point for circuit courts to expend further judicial energy considering gay marriage.

And as a final point, Judge O’Scannlain’s parsing of the Supreme Court’s decision in United States v. Windsor, 570 U.S. __ (2013) (Docket No. 12-307) to argue that the Court has not decided the gay marriage issue is underwhelming.  While O’Scannlain is literally correct, Justice Kennedy writing for the majority in Windsor said of the Defense of Marriage Act (DOMA): “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” 

Even Justice Scalia, dissenting in Windsor, recognized “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”  It's time for Judge O’Scannlain to climb in the life boat and raise the white flag of equality.

Robert V. Ritter

Supreme Court takes a pass and lets gay marriages procede

This morning the Supreme Court denied certiorari in seven cases involving gay marriage—letting stand the decisions of the appellate courts which had all held that state bands against gay marriage violate the Equal Protection Clause of the 14th Amendment.  The cases involved five states: Virginia (4^th Cir.), my home state, Indiana (7^th Cir.), Oklahoma (10^th Cir.), Utah (10^th Cir.) and Wisconsin (7^th Cir.). 

The Court’s order immediately ends delay on marriage in those states. In addition, because the case settles the issue of gay marriage in the circuits of the aforementioned states, the states of Colorado (10^th Cir.), Kansas (10^th Cir.), North Carolina (4^th Cir.), South Carolina (4^th Cir.), West Virginia (4^th Cir.) and Wyoming (10^th Cir.) are also affected. By early afternoon, several states had already started issuing marriage licenses to gay couples. With these eleven states, gay marriage is now legal in thirty states and the District of Columbia.

The Supreme Court’s order comes as a surprise to experts and advocates of gay marriage, including myself, who believed that the Court would agree to hear at least one of the cases in order to definitively rule on such an issue of national importance. It takes at least four justices to agree to hear a case before it is docketed for oral argument. There being five justices on the Court regarded as conservative and presumed to be supportive of the conservative agenda—one would have thought that there would have been at least the four votes necessary to hear the case.  What happened?

I offer four reasons. First, Justice Kennedy, often regarded as a swing vote, wrote the majority decision United States v. Windsor (2013) that held the Defense of Marriage Act (DOMA) unconstitutional holding that DOMA was unconstitutional “as a deprivation of the liberty of the person protected by the Fifth Amendment.” So the Court is probably down to a maximum of four votes to hear the case With Kennedy, Ginsburg, Breyer, Sotomayor and Kagan probably voting no.

Second, the same reasoning in Windsor (noted above) would apply to the gay marriage cases. In fact, Justice Scalia said as much in his dissenting opinion in Windsor.  Thus, indirectly, the Supreme Court had essentially already ruled that gay marriage is a protected fundamental right.

Third, there is no split among the circuit courts—the most common reason for the Supreme Court to take a case.

And fourth, perhaps Chief Justice Roberts is concerned about his legacy and did not wish to write an opinion on the wrong side of the national tide strongly in favor gay marriage.

In short, gay marriage's time has come.

The cases are:

     Herbert v. Kitchen (Docket No. 14-124) (Utah)
     Smith v. Bishop (Docket No. 14-136) (Oklahoma)
     Rainey v. Bostic (Docket No. 14-153) (Virginia)
     Schaefer v. Bostic (Docket No. 14-225) (Virginia)
     McQuigg v. Bostic (Docket No. 14-251) (Virginia)
     Bogan v. Baskin (Docket No. 14-277) (Indiana)
     Walker v. Wolf (14-278) (Wisconsin)