How We Win Matters: Observations on the Recent SCOTUS Decisions (Guest Post)

Process Should Matter But Doesn’t Anymore

Colonel Hyrum Graff: We won. That’s all that matters.

Ender Wiggin: No. The way we win matters.

—From the film Ender’s Game

Really, process hasn’t much mattered for a long time.Thursday, a 6-3 majority of the Court rewrote portions of the Affordable Care Act because that was the easiest thing to do. It was the only way to save a poorly written, supremely complex law. Rather than uphold the Act’s plain, unambiguous language as written by Congress (well, by someone anyway—we wouldn’t know what was in it until they passed it, according to Nancy Pelosi), the majority used very selective context to rule that when Congress explicitly wrote about exchanges created by “the State” it didn’t really mean “the State”. That’s like ordering a chocolate donut for breakfast, and the waitress bringing you a bear claw and a turkey sandwich and telling you that’s what you really meant.

The following day, a 5-4 Court held that all 50 states had been violating the Constitution for nearly 150 years. How? By failing to recognize that it guaranteed the right to same-sex marriage. This despite the fact that no society in, oh, all of human history had recognized it much less been rooted in the practice. It was not enough for the Court to uphold the actions of those states who have validate same-sex marriage, the large majority of which had it forced on them by judges (though that wasn’t specifically what they were asked). No, the Court saw fit to discover (eureka!) a new fundamental, constitutional right to same-sex marriage.

We have evolved a system where our courts are a super-legislature. First, judges and justices can simply rewrite inartfully drafted laws to suit what they think is best. Second, they can make final decisions on controversial issues as they see them, effectively ending public, political and legislative debate. Sure, they’ll pay lip service to “legislative intent” and our “traditions”. But they are results driven. They will focus on cultural and societal changes that help them arrive at the more enlightened conclusion they want to reach.

Funny, I thought justice was supposed to be blind. Clearly she’s learned how to hold the scales while simultaneously peeking through her blindfold.

We got to this point because we, the people, in order to form a more perfect union, have decided the best place for editing laws, “creating” or “finding” new constitutional rights, and expanding government power is the one branch of government that has absolutely no accountability to the people. This is entirely inconsistent with the representative republic our Founders established. If the Founders had wanted to give nine unelected judges legislative power, they would have written it in the Constitution. They didn’t. They implied the some form of judicial review but several Founders, including Alexander Hamilton and Thomas Jefferson, cautioned that the judiciary shouldn’t have super-legislative authority and judges shouldn’t substitute their own will for proper judgment.

The Founders vested legislative power in the Congress, the body originally designed for representatives of the people (the House of Representatives) and the states (the Senate) the place to draft, debate, consider and ultimately vote on proposed laws. And the constitutional restrictions on federal power were designed to limit the areas Congress and the rest of the federal government could regulate. The states, local governments and people were to retain most of the power and function as the great experiments of democracy, joined in union on a few federal issues but otherwise fully independent of federal intervention. In other words, our system was deliberately created to promote tension among equally empowered groups.

Unfortunately, we, the people, have conceded over the decades that the legislative process is too slow, too cumbersome, too partisan, too whatever to accomplish all the changes we want. Unhappy your state has restrictions on abortion? Believe sodomy laws are outdated and should be repealed? Think your state should authorize same-sex marriage? Don’t go through a legislature populated by the people’s representatives. You might (gasp) lose. The people may not be ready for your changes and their representatives may reflect that.

Instead, pick the best “test case” you can—you know, the one with the most sympathetic plaintiff and the best story to tell—and file suit instead. Shop for a friendly judge who is politically sympathetic and argue the system must be changed judicially because that’s the way to right the wrong. Those legislators and their hayseed constituents just aren’t sophisticated or brave enough to act. And if you get to the Supreme Court, rely on the political and cultural climate to persuade 5 of 9 to rule in your favor because, you know, we are more enlightened now. And if you don’t succeed, find another test case and try again. Maybe a little more time will change culture and, as a result, judicial minds.

Chief Justice John Roberts took seemingly contradictory positions in the Obamacare and same-sex marriage. In upholding Obamacare he reminded that the legislative and political process had taken their course and the Court’s role was to interpret the Act the way Congress intended. Curiously, he claimed “[T]he power to make the law rests with those chosen by the people,” while ignoring the fact that the law was not written by the people’s representatives but lobbyists and policy wonks, and ignoring the actual words of the law. He must have meant that the legislators have the power to make law unless they write something we don’t like. Then, the very next day, in dissenting from the same-sex marriage majority in Obergefell v. Hodges, the Chief wrote, “It can be tempting for judges to confuse our own preferences with the requirements of the law. The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.”

Huh? Has the Chief Justice of June 24 met the Chief Justice of June 25? He argues essentially the same point to reach completely contradictory positions. How else to explain this than conclude the judiciary is a super-legislature substituting its own results-driven conclusions for those of duly elected legislatures.

Cheering either of these decisions because you support the result you places us all on a very slippery slope. After all, a court that makes decisions you favor without respecting established process can just as easily rule against you next. As Justice Samuel Alito aptly put it in his dissent in Obergefell: “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.”

That is oligarchy—government by a select few—not democracy.

The Living, Breathing, Meaningless Document

Supporters of the judiciary’s power grab will defend these and other controversial decisions as the natural evolution of society and culture. The Constitution was enacted more than 200 years ago, they’ll say. The drafters couldn’t possibly have envisioned the issues we have to deal with today. So the language they used can’t realistically be used to confront today’s issues.

They are correct to an extent. Take birth control. Assume for argument that the Founding Fathers had some knowledge of the issue and considered it as a possible fundamental right when deciding which rights to enumerate. Clearly the issue was not of sufficient significance or seriousness to warrant specific inclusion in the Bill of Rights. But if they had little to no knowledge of birth control, can we blame them for failing to include it? Fast forward to the 1960s and the states have various laws criminalizing or substantially regulating the use of birth control. The appropriate process to change these laws, again, would have been to go to the state legislatures and urge them to deregulate and decriminalize. If they chose not to, then you try again and gain greater public support. The other alternative would have been to seek to amend the Constitution to provide recognition of the right to use birth control.

What actually happened, however, was Estelle Griswold opened a Planned Parenthood clinic in Connecticut with the goal of hoping to test Connecticut’s law criminalizing the dispensing of birth control. She and a colleague were arrested the day they opened the clinic, convicted at trial and fined. Their case was the last of several perviously unsuccessful “test cases” over a couple decades designed to use the courts to do what the legislature apparently wouldn’t.

The case made its way to the Supreme Court—Griswold v. Connecticut—in 1965. A majority not only overturned the convictions, it ruled Connecticut’s law was unconstitutional. The Griswold majority wrote that the law violated the “right to privacy.” Not familiar with the words “right to privacy” in the Constitution? Don’t feel bad, they’re not in there. In fact, Justice William O. Douglas, who wrote the majority opinion, conceded they’re not there. No matter. Justice Douglas reasoned this new “fundamental right” can be found in the “penumbras” (essentially, shadows) of the “emanations from [other] guarantees” found in several specifically mentioned rights in the Constitution.

So, in other words, if it’s not specifically in there but we think it should be because (a) of our modern enlightenment, and/or (b) the legislature isn’t doing what we think they should, we’ll find it there somewhere, even if we have to look at the penumbras from emanations (whatever those are). A bear claw and a turkey sandwich might be found in the penumbras from emanations of a chocolate donut.

Justice Potter Stewart dissented in Griswold and would have held the Connecticut law constitutional despite being “an uncommonly silly law.” Justice Hugo Black agreed with Stewart but separately dissented to explain the reason for his conclusions: “I agree with [Justice Stewart’s] dissenting opinion. And, like him, I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise, or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority [and the justices who wrote opinions concurring with the majority] who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court’s opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.” Brilliant.

Justices Black and Stewart recognized their proper role as justices was to consider the actual language of the Constitution, not to decipher its emanations and penumbras. The actual words were supposed to be the gold standard by which Ms. Griswold’s claim should be measured. The so-called “right to privacy” wasn’t in there; therefore Ms. Griswold’s ability to dispense birth control, and the people of Connecticut’s ability to use it, was not a fundamental right. It was subject to regulation—even stupid, wrong-headed regulation, including outlawing—by their legislature. These justices also knew what their role was NOT—namely to substitute their opinions for the Connecticut legislature as dumb as the law might be.

This brings us back to the Founding Fathers. So they didn’t specifically enumerate the “right to privacy” or the right to use birth control, or have an abortion, or engage in sodomy, or permit same-sex couples to marry. So what? Justice Anthony Kennedy told us in his majority opinion in Obergefell that the drafters of the Constitution, and eight decades later the Fourteenth Amendment, that guaranteed due process, “did not presume to know the full extent of of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

He’s right. Clearly the full extent of freedom and liberty evolve because our society, culture, technology all evolve too. The Founders, as smart as they were, weren’t clairvoyant. Future generations should have input on what is and is not a fundamental right. What’s the easiest way to do this? Make the Constitution a living, breathing document that must naturally change with the times when judges say so.

Except the Founding Fathers, with wisdom that dwarfs to a minuscule level the wisdom of modern leaders and judicial majorities, established ways for the Constitution to be amended. Article V gives only Congress (two-thirds of both houses) and the States by convention (two-thirds of the state legislatures) the authority to propose amendments, which then head to the state legislatures where three-fourths of them are needed to ratify. Notice that neither method gives the Supreme Court or any court this authority.

And yet that’s exactly what the modern judiciary and Supreme Court do. You want to modernize the Constitution’s language? You want to have a right to privacy in ones personal affairs constitutionalized? Better yet, you want the Constitution to guarantee specific rights related to privacy like, say, a woman’s right to choose? Don’t concern yourself with “original intent” or actual words because these antiquated notions cannot compare to our modern sensibilities (some of the Founders owned slaves, after all). Don’t bother with that pesky, arduous amendment process. Just cling to the notion that the Constitution means what we say it means because it lives, it breathes, it is malleable and should naturally adapt to the times.

Chief Justice Roberts said it well in his dissent in Obergefell: “The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‘new insight’ into the ‘nature of injustice.’ As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? * * *“Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been ‘extensive litigation,’ ‘many thoughtful District Court decisions,’ ‘countless studies, papers, books, and other popular and scholarly writings,’ and ‘more than 100’ amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ ‘better informed understanding’ of ‘a liberty that remains urgent in our own era.’ The answer is surely there in one of those amicus briefs or studies.”

And let’s not forget that many states had already legalized same-sex marriage. Most of them had state court judges impose it but nearly a dozen actually passed and signed bills into law. The Supreme Court should have deferred to the states to make their own decisions. That’s what was happening already. Without their help.

Practical Madness

Those trumpeting the same-sex decision in Obergefell pooh-pooh the conspiracy talk of what the practical consequences could be. Relax, they say. No one is going after Christians or churches. No one is going to be discriminated against or get sued. This is just the easiest way to equalize all people so stop being bigoted and just get over it.

Now, put emotions to the side. Is it that hard to imagine how Obergefell could have wide-ranging impact beyond gay couples getting wedding licenses?

Suppose a gay couple want to marry in a particular church and the church refuses. Does the church now have any legitimate grounds to refuse? What if the couple wants their pastor to perform the ceremony away from the church building? Can the pastor refuse? Do you honestly believe every couple in this situation wouldn’t sue the church? Who has the greater “fundamental right”? I guess we’ll have to leave that up to the judges—which means the conclusion is obvious in light of modern jurisprudence.

Many churches and religious organizations have 501(c)(3) tax exempt status under the tax code. They can lose their status if they support a particular candidate or engage in improper political activities. Could refusing to perform same-sex weddings jeopardize their status? I guess we’ll have to leave that up to the IRS—which means the conclusion is obvious given their recent history of targeting religious and conservative groups.

Can a private business operated by a religious person refuse to provide services for same-sex weddings? Can a Christian baker refuse to bake a wedding cake? Can a Muslim florist refuse to provide floral arrangements? Can a Hindu limousine driver refuse to drive the same-sex couple to the honeymoon suite? Well, we know prior to last week’s decisions that several times business owners have been fined, sued, and/or run out of business for standing by their religious beliefs. Heck, a Christian pizza parlor owner in Indiana was compelled to close her business due to backlash when she gave the “wrong” answer to a hypothetical question about whether she’d cater a same-sex wedding. Is it so hard to fathom that incidents like this will only increase after this past week?

What about polygamy? Again, leave the emotion aside and look at it logically. Chief Justice Roberts correctly stated in his dissent that there is a much greater history of societies allowing polygamous marriages than same-sex marriages. And one of the key reasons in favor of marriage has always been procreation—at least until this last week. Given that same-sex marriage is now a “fundamental right” why should there be a limit on the number of people that can marry each other? What would be the justification to continue to outlaw polygamy?

What about other fundamental rights? Can a state that outlaws concealed carrying of a firearm still prevent a person with a concealed carry license from another state from carrying there? Abortion (we’re told) is a fundamental right too. Can a medical doctor refuse to perform an abortion if the mother really wants that doctor to do it? In light of Obergefell, how?

Social engineering through government is the root of this problem. And unfortunately this is nothing new. Our federal government has been using the tax code, administrative regulations through myriad, often duplicative executive agencies and programs, the decennial census, and judicial authority to encourage some behaviors while discouraging or outlawing others, set policy, and “right” perceived “wrongs” for centuries. Cases like Griswold and Obergefell continue this trend by forcing society to change at the stroke of a judge’s pen rather than debating, discussing, deliberating and deciding together.Is it really a stretch to think these conflicts will not only continue but accelerate?

A Final Personal Note

All of the above does not change the fact that I love and care for all my friends and family.

To my gay friends, I love you. Christ came not to judge us but to forgive us and reconcile us to the Father. My goal as your friend is to treat you as He would. I pray that you will experience Him and the freedom that comes from relationship with Him.

A recent Facebook meme captures it well:

“Yes, I am a Christian. I believe the Bible. I do not support homosexuality or ‘homosexual marriage.’

Yes, I still love you.

Yes, we are still friends.

No, I am not judging you.

No, I am not condemning you to hell.

No, I will not let anyone bully you.

But realize that name-calling and stereotyping those of use who stand for what we believe is exactly what you don’t want done to you. We have a right to speak what we believe, same as you have a right to speak what you believe.”

I would add a couple of things.

I don’t hate you because we may disagree. We don’t have to agree on everything to be friends.

I don’t raise concerns about the process of how things are done because I am trying to deny anyone anything.

I am not an alarmist or conspiracy theorist for looking at the logical extension of what we do.

I simply believe that words mean things, our heritage and history are important, and we need to make changes in the appropriate manner.

I also believe these things should concern every American.

And none of this makes me “homophobic” or bigoted or any other negative epithet.

How we do things is as important as what we do. Do we want to continue ceding our authority and increase the imbalance of powers, so these privileged, select few can tell us what is best?

I think that’s a really bad idea.

As Ender Wiggin said, “The way we win matters.”