Yesterday, U.S. Supreme Court Justice Antonin Scalia told students at Archbishop Rummel High School in Metairie, Louisiana that the Constitution does NOT, in any fashion, require that the federal government remain neutral concerning religion.
“Don't cram [that neutrality concept] down the throats of an American people that has always honored God on the pretext that the Constitution requires it.” -- Supreme Court Justice Antonin Scalia
For background, click headlines below to read previous articles:
“God has been very good to us,” Scalia said at a speech at a Catholic high school in Louisiana, according to the Times-Picayune. “One of the reasons God has been good to us is that we have done him honor.”
On Saturday, he said the First Amendment prohibits the government from endorsing one religion over another. But, he added, that doesn’t mean the government has to favor non-religion over religion.
He argued that’s a more modern reading originating in the courts in the 1960s.
If Americans want to the government to be non-religious, he said, they should vote on it instead of courts deciding.
"To tell you the truth there is no place for that in our constitutional tradition. Where did that come from?" he said. "To be sure, you can't favor one denomination over another but can't favor religion over non-religion?"
Scalia was speaking at Archbishop Rummel High School at an event sponsored by the school and Catholic Community Radio as an early commemoration of Religious Freedom Day.
Scalia said that his colleagues on the Supreme Court often spend a lot of time deciding if the government favors religion over non-religion in many of their rulings.
He also said there is "nothing wrong" with the idea of presidents and others invoking God in speeches. He said God has been good to America because Americans have honored him.
Scalia said during the Sept. 11 attacks he was in Rome at a conference. The next morning, after a speech by President George W. Bush in which he invoked God and asked for his blessing, Scalia said many of the other judges approached him and said they wished their presidents or prime ministers would do the same.
"God has been very good to us. That we won the revolution was extraordinary. The Battle of Midway was extraordinary. I think one of the reasons God has been good to us is that we have done him honor. Unlike the other countries of the world that do not even invoke his name we do him honor. In presidential addresses, in Thanksgiving proclamations and in many other ways," Scalia said.
"There is nothing wrong with that and do not let anybody tell you that there is anything wrong with that," he added.
Government support for religion is not only justified by the Constitution, it was the norm for hundreds of years and it helped the United States become a free and prosperous nation, Supreme Court Justice Antonin Scalia said Saturday in Metairie.
The Constitution's First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn't mean the government can't favor religion over nonreligion.
That was never the case historically, he said. It didn't become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.
At the time the Constitution was written, religion was ubiquitous. Scalia noted that Thomas Jefferson, who first invoked the idea of a "wall of separation between church and state," also penned Virginia's religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.
Although the U.S. Supreme Court ruled unanimously against so-called "buffer zones" that bar pro-lifers from public sidewalks near abortion clinics, Justice Scalia and three other justices said that the majority opinion discriminates against pro-lifers by ruling extra speech rights for abortionist employees.
“Today’s opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . [and the majority opinion] continues the onward march of abortion-speech-only jurisprudence” -- Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas
Significantly, only the court’s liberals joined [Chief Justice John] Roberts’ [majority] opinion — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. That is a rare combination at the court . . .
The court’s four conservatives agreed the law violated the First Amendment but, writing separately from Roberts, said he was wrong in not simply finding that the law discriminated against those opposed to abortion.
Justice Samuel Alito did not join Scalia’s biting opinion and wrote his own, agreeing that the law was unconstitutional because employs “blatant viewpoint discrimination.”
Roberts’ opinion — which Scalia mocked as “Something for Everyone” — found a middle ground.
The law’s opponents argued that the law was what is known as a “content-based” restriction of speech because “it creates speech exclusion zones only at abortion clinics and, as a practical matter, affects speech on only one controversial issue–abortion.” Because the law exempted clinic employees and volunteers from the buffer zone, they also argued that it privileged abortion supporters.
This isn’t the first time Scalia has spoken out against his fellow justices on this issue. In 2000, Scalia dissented from a majority ruling in favor of a Colorado buffer zone law: “What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.”
“Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent.”
It is unclear whether the court’s Thursday ruling will overturn the 2000 decision.
The law, [Scalia] said, clearly intended to silence all pro-life advocacy near abortion facilities.
The three criticized the majority's view that the state law was not “narrowly tailored” because the pro-life counselors had not engaged in sufficient violence to warrant the statute. “That is rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.”
Justice Scalia also rapped the court's liberal wing for telling Massachusetts lawmakers to “consider an ordinance such as the one adopted in New York City that . . . makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility.’”
Justice Samuel Alito had questioned why abortion escort's free speech rights would be respected within the bubble zone but pro-lifers would have their rights denied.
Imagine if two people spoke to a woman considering an abortion, he said during oral arguments months ago. “The first, who is an employee of the facility, says, ‘Good morning. This is a safe facility.’ The other one who’s not an employee says, ‘Good morning, this is not a safe facility.’ Now, under this statute, the first one has not committed a crime; the second one has committed a crime,” he said.
The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion speech edition of the First Amendment. But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence.
The gratuitous portion of today’s opinion is Part III, which concludes—in seven pages of the purest dicta—that subsection (b) of the Massachusetts Reproductive Health Care Facilities Act is not specifically directed at speech opposing (or even concerning) abortion and hence need not meet the strict-scrutiny standard applicable to content based speech regulations. Inasmuch as Part IV holds that the Act is unconstitutional because it does not survive the lesser level of scrutiny associated with content-neutral “time, place, and manner” regulations, there is no principled reason for the majority to decide whether the statute is subject to strict scrutiny.
Is it harassment, one wonders, for Eleanor McCullen [a pro-life sidewalk counselor] to ask a woman, quietly and politely, two times, whether she will take literature or whether she has any questions? Three times? Four times? It seems to me far from certain that First Amendment rights can be imperiled by threatening jail time (only at “reproductive health care facilit[ies],” of course) for so vague an offense as “follow[ing] and harass[ing].” It is wrong for the Court to give its approval to such legislation without benefit of briefing and argument.
Public streets and sidewalks are traditional forums for speech on matters of public concern. Therefore, as the Court acknowledges, they hold a “‘special position in terms of First Amendment protection.’” Moreover, “the public spaces outside of [abortion providing] facilities . . . ha[ve] become, by necessity and by virtue of this Court’s decisions, a forum of last resort for those who oppose abortion.” It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based. Would the Court exempt from strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Convention? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.
To read the entire Supreme Court decision, CLICK HERE.
Gay Agenda judges across America are rapidly falling in line to forbid American voters the right to define marriage as between one man and one woman. Supreme Court Justice Antonin Scalia, a devout Roman Catholic, has warned for more than a decade that judicial activism in the high court decisions were pointing toward an eventual stripping of moral values from the fabric that created America.
[Justice Antonin Scalia's] prediction came true on Friday, when U.S. District Judge Robert Shelby ruled that Utah's 2004 ban on gay marriage was unconstitutional. And Shelby even made note of Scalia's dissent at points in his ruling, citing it as part of his reasoning in striking down the Utah law.
Scalia warned that the Supreme Court's reasoning that struck down [one portion of] the Defense of Marriage Act — which denied federal benefits to same-sex couples — could be used to strike down state laws banning same-sex marriage. Scalia, who's notoriously anti-gay marriage, was saying this was a bad thing. In an interesting twist, Utah's Judge Shelby quoted Scalia's negative prophecy in his pro-gay marriage opinion [and] then wrote that he "agreed" with that part of Scalia's opinion, and offered his response. Though Scalia meant it as some kind of dire warning, Shelby cited the Supreme Court's decision as a reason to overturn Utah's law:
The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
The scenarios must have sounded all too familiar to U.S. Supreme Court Justice Antonin Scalia. In June, when the court issued a landmark decision ordering the federal government to recognize same-sex marriages performed in states where they were legal, Scalia warned of what could come next.
"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," Scalia wrote in a scathing dissent in United States vs. Windsor, which struck down part of the federal Defense of Marriage Act but left state laws intact. "No one should be fooled; it is just a matter of listening and waiting for the other shoe" to drop.
Now, for opponents of same-sex marriage, the other shoe is dropping.
"Now it is just as Justice Scalia predicted," [U.S. District Judge Timothy S.] Black wrote in his Ohio ruling. "The lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples. ... Under the Constitution of the United States, the answer is no."
[Numerous] judges have overridden legislators and voters who had approved the bans before national popular opinion began to tilt in favor of same-sex marriage.
The same-sex weddings began in a joyful chaos on Friday afternoon after Judge Shelby declared that the ban that Utah voters approved in 2004 violated the United States Constitution. While many gay-rights advocates expected a favorable ruling from Judge Shelby, an appointee of President Obama, the timing caught many gay couples off-guard. . . .
Gov. Gary R. Herbert, a Republican, said the flurry of new marriages and unresolved legal questions — lawyers on both sides said the case was likely to reach the United States Supreme Court — had created “a lot of chaos” in Utah. He condemned the ruling as an activist judge’s attack on a definition of traditional marriage that was supported by a wide majority of Utah residents.
. . . A spokeswoman for Ohio’s attorney general, Mike DeWine, said he would appeal the [Ohio] ruling to the United States Court of Appeals for the Sixth Circuit.
The Ohio decision did not go as far as the ruling in Utah, but experts said both were among federal cases around the country likely to return the issue of same-sex marriage to the Supreme Court.
. . . The Mormon Church, once a leader of the anti-marriage-equality fight and a major force in Utah, was practically apologetic in its disagreement with the decision. “The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect,” the Church statement said. “This ruling by a district court will work its way through the judicial process.” A few dead-enders in Utah have fought back, and there is no guarantee that the decision will survive on appeal, but the muted response suggests that everyone, on all sides of the issue, sees where the country is headed.
Dominoes are falling all over. The day before Utah became the eighteenth state (in addition to the District of Columbia) to allow same-sex marriage, New Mexico became No. 17. The New Mexico Supreme Court ruled unanimously that its state constitution required marriage equality.
. . . The Ohio [Judge Black] decision is crucial because people in the United States tend to move from state to state. . . . It would be a disorderly mess to have separate spheres of law [from state to state] for gay married couples and straight married couples . . .
What [Utah's Judge] Shelby and all these judges are seeing is that it is impossible to offer gay people some rights and not others. . . .
“The alleged right to same-sex marriage that the State claims the Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond,” wrote [Judge Shelby].
“This right is deeply rooted in the nation’s history and implicit in the concept of ordered liberty because it protects an individual’s ability to make deeply personal choices about love and family free from government interference,” he declared. “And, as discussed above, this right is enjoyed by all individuals. If the right to same-sex marriage were a new right, then it should make new protections and benefits available to all citizens. But heterosexual individuals are as likely to exercise their purported right to same-sex marriage as gay men and lesbians are to exercise their purported right to opposite-sex marriage. Both same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.”
“The Plaintiffs are seeking access to an existing right, not the declaration of a new right,” said the judge.
The judge argued that the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, are the two provisions of the Constitution that have guaranteed the “existing right” of a man to marry another man or a woman to marry another woman.
In a broadly written ruling Monday, Judge Timothy Black said Ohio's ["Gay Marriage"] ban is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality.
Bridget Coontz, the attorney who argued on behalf of the state, said Wednesday in Black's Cincinnati courtroom that in the Supreme Court's historic June decision, the justices also found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004.
"Ohio doesn't want Delaware or Maryland to define who is married under Ohio law," she said. "To allow that to happen would allow one state to set the marriage policy for all others."
Black said constitutional rights trump Ohio's gay marriage ban, questioning whether it was passed for a legitimate state interest "other than simply maintaining a 'traditional' definition of marriage."
. . . as Scalia pointed out, Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how such challenges might be successful.
It is not surprising that judges might want to quote a conservative justice when striking down what voters have put in place. Ohio and Utah voters amended their state constitutions to ban same-sex marriages in 2004, along with other states. Black and Shelby were nominated by President Obama.
Shelby, 43, does not have the reputation as a firebrand. He had been on the bench only six months when he was assigned the same-sex marriage case Kitchen v. Herbert. He was previously a Salt Lake City lawyer and was honored for his service in Operation Desert Storm while in the Utah National Guard.
The state of Utah has said it will ask the Supreme Court to stay Shelby’s ruling and stop same-sex marriages while an appeals court considers the merits of the decision. . . .
Once again, predictions of Supreme Court Justice Antonin Scalia have materialized . . . In ruling that the Utah law banning polygamy is unconstitutional, U.S. District Court Judge Clark Waddoups, cited two Supreme Court decisions: the 2003 ruling favoring sodomy, and this year's ruling favoring same-sex "marriage." The Gay Agenda is proving to be the epitome of the "slippery slope" metaphor.
“Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.” -- Attorney Jonathan Turley, plaintiff counsel and law professor at George Washington University
The ruling was a victory for the polygamist Brown family — stars of the reality TV show “Sister Wives” — and other Fundamentalist Mormons who believe polygamy brings exaltation in heaven.
Anne Wilde of the polygamy advocacy group Principle Voices says polygamous families have lived under the threat of arrest for decades and no longer have to worry that “someone will knock on their door and take away their kids” because the ruling decriminalizes polygamy in Utah.
The Utah attorney general’s office has not yet said whether it’ll appeal Waddoups’ decision.
The U.S. District Court, District of Utah, Central Division has ruled that plural marriages do not constitute a crime. While this does not open the door immediately to plural marriage licenses or other rights, it does one thing – families that practice polygamy may not be persecuted by the state as criminals.
In its decision, the court struck down the part of the statute that criminalizes co-habitation between consenting adults. The effect of the decision would also limit future prosecutions of traditional bigamy in cases where individuals have multiple marriage licenses.
Of course, this throws open a door of thousands of other issues like inheritance, and rights of wives and their children, but as the case makes clear – criminalization of polygamy also did not serve to address those more important issues, but served to suppress them.
A federal judge has struck down parts of Utah’s anti-polygamy law as unconstitutional in a case brought by a polygamous star of a reality television series. Months after the Supreme Court bolstered rights of same-sex couples, the Utah case could open a new frontier in the nation’s recognition of once-prohibited relationships.
Judge Waddoups, who was appointed by President George W. Bush, wrote a 91-page decision that reflects — and reflects upon — the nation’s changing attitude toward government regulation of personal affairs and unpopular groups. The Supreme Court supported the power of states to restrict polygamy in an 1879 decision, Reynolds v. United States.
As same-sex marriage has gained popular approval and legal status in recent years, some have hoped — and some feared — that other forms of cohabitation might follow. Justice Antonin Scalia, in his bitter and famous dissent from the 2003 Lawrence case, said the nation was on the verge of the end of legislation based on morality, and was opening the door to legalizing “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
After learning of the ruling Saturday afternoon, Marvin Wyler exclaimed "hallelujah" and said polygamy never should have been criminalized in the first place. Wyler — who left The Fundamentalist Church of Jesus Christ of Latter-Day Saints more than a decade ago but continues to believe in polygamy — said that in the past polygamists feared legal repercussions for their criminalized lifestyle. The ruling lifts that threat — which surprised Charlette Wyler, a wife of Marvin’s.
But Marvin Wyler also doubted the new court ruling would have a major impact on Hildale [Utah] and adjacent Colorado City, Ariz., collectively known as Short Creek. He didn’t know of the ruling until Saturday afternoon — hours after a polygamous wedding happened in the town — and life would likely continue for most people as usual.
"It won’t be any different," he said.
The limited impact of the ruling was the theme of the day in the community, which seems to have learned to live without much attention to bigamy laws.
U.S. District Judge Robert J. Shelby's ruling Monday comes three days after he struck down Utah's ban on same-sex marriage.
Shelby said lawyers for the state had offered no evidence that opposite-sex marriage would be affected and that their "fears and speculations are insufficient to justify the State's refusal to dignify the family relationships of its gay and lesbian citizens."
Shelby held a hearing on the matter Monday and denied Utah's request to stay his decision, according to Mary Jane McNamee, his courtroom deputy.
Utah voters approved a law banning same-sex marriage in 2004.
The liberal media was stunned this week by an interview with New York Magazine wherein Supreme Court Justice Antonin Scalia, a Roman Catholic, quoted the belief of his religion that Satan is real and thus deceives people today into believing that there is no God and no Devil.
Justice Scalia said to the stunned journalist, "My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil."
Justice Antonin Scalia sat for a revealing interview with New York Magazine that is being variously described as “weird,” “bizarro” and proof that Scalia is a terrible man.
A lot of what Scalia has to say won’t come as a surprise to anyone who has followed his career or read his opinions. . . .
. . . Nor is it odd that a devout Roman Catholic would believe in the existence of the devil. As Scalia puts it to his incredulous interviewer: “Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.” (Maybe not every Catholic, but certainly Pope Francis, who wrote: “I believe that the devil exists” and “his greatest achievement in these times has been to make us believe he doesn’t exist.”)
To read the entire opinion column above, CLICK HERE.
Washingtonians may know Scalia as charming and disarming, but most outsiders tend to regard him as either a demigod on stilts or a menace to democracy, depending on which side of the aisle they sit. A singularity on the Court and an icon on the right, Scalia is perhaps more responsible than any American alive for the mainstreaming of conservative ideas about jurisprudence—in particular the principles of originalism (interpreting the Constitution as the framers intended it rather than as an evolving document) and textualism (that statutes must be interpreted based on their words alone). . . . [Jennifer Senior:] You believe in heaven and hell?
[Justice Scalia:] Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my. . . . It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other. Every Catholic believes [in the Devil]? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
. . . You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. . . . I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad. And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
Scalia attended public elementary school and a Catholic high school in New York City. He has made no secret of his religious beliefs and how they have influenced his decisions while on the Supreme Court.
The Justice has a fondness for Pope Francis and said that he agrees with the Pope's assertion that the church should be more evangelistic.
"I have often bemoaned the fact that the Catholic Church has sort of lost that evangelistic spirit," Scalia said. "And if this pope brings it back, all the better. [Pope Francis] is the Vicar of Christ. He's the chief. I don't run down the pope."
. . . When was the last time you heard someone in his position make such a bold declaration about the only thing that will matter to any of us 100 years from now. Talk about foresight. This man gets it. He knows that when America is no more, each one of us will still be in existence. For real.
. . . Talk about out of step with many of those in positions of power today.
. . . Antonin Scalia is in many ways a throwback to an earlier time in America. It was a time when talking about God and eternity was commonplace virtually everywhere in society. Today when somebody mentions their belief in a literal God and devil, you would think that someone shouted out the F-word.
. . . Just think how different America would be without profanity, and name calling, and hatred. And just think how full heaven would be, and how empty hell would be, if everyone would humbly kneel at the foot of Christ's cross. If only everyone would repent of his sin and believe in the Savior, what a joyous eternity we would share with one another.
To read the entire opinion column above, CLICK HERE.
Honest liberals agree that the Supreme Court ruling on "gay marriage" must eventually lead to further court rulings favoring plural marriage (polyamory) at the least. The dissenting court opinion by Justice Antonin Scalia, whose much-derided "slippery slope" argument in the Supreme Court Texas sodomy ruling of 2003 predicted this week's ruling, gives insight to the future -- not just the demise of family, but demise of democracy and thus religious liberty.
“I am questioning the propriety, the sanity of having a value-laden decision ... made for the entire society by unelected judges.” — Justice Antonin Scalia, U.S. Supreme Court
In his majority opinion for U.S. v. Windsor, Justice Kennedy argued that the Defense of Marriage Act [DOMA], which defines marriage as strictly between one man and one woman, was unconstitutional because it pegs homosexuals as second class citizens. . . .
Anne Wilde, a Mormon fundamentalist and founder of the polygamist rights organization, Principle Rights Coalition, is hopeful that these decisions represent movement towards the decriminalization of polygamy.
Despite their contrasting opinions on other issues, advocates both for and against polygamy view these two [Supreme Court] rulings as instrumental in opening the floodgates for plural marriages.
. . . Mark Goldfeder, a law professor at Emory University, thinks that the two rulings had significant impact on the future of polygamy in the United States. Goldfeder, who specializes in the intersection of law and religion, says that the courts will need to find other justifications to keep anti-polygamy statutes in place.
"It's one hundred percent likely that these polygamist cases will come, but they will no longer turn on whether a relationship is immoral," Goldfeder says. "The court will look at whether these relationships cause third party harm."
Just hours after the court ruled that DOMA was unconstitutional, Joe Darger said he and his family were pleased. Darger, who with his three wives detailed their life in the book "Love Times Three: Our True Story of a Polygamous Marriage," said the ruling should help remedy polygamists’ treatment as "second-class citizens."
Darger added that he believes the decision also will influence the high-profile Brown case, which is pending in Utah before federal Judge Clark Waddoups. In that case, the polygamous Brown family — which is well known from the TV show "Sister Wives" — is suing to strike down the statute that makes bigamy a third-degree felony.
Jonathan Turley, the Washington, D.C.-based lawyer representing the Browns . . . pointed out Justice Anthony Kennedy emphasized the "limited right of the federal government in treating couples differently once they have been recognized as married by a state."
Perhaps the most significant development in regards to polygamy, Turley explained, was the court’s shift away from morality as a justification of law.
"In the United States and indeed throughout the world, belief in the expert has been replaced by the judge moralist," said Scalia, who is the longest-serving member now on the high court. "We have become addicted to abstract moralizing."
. . . Scalia said a change in judicial philosophy occurred in the second half of the 20th century.
"And I am sorry to say that my court was responsible for it," he said. "It was my court that invented the notion of a 'living' Constitution. Beginning with the cruel and unusual punishment clause of our Eighth Amendment, we developed the doctrine that the meaning of the Constitution could change over time."
"About nine terms ago, we held laws against private consensual sodomy, laws that existed in perfect conformity with the Constitution for over 200 years, to be impermissible."
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
[The majority opinion] is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding. . . .
Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. . . .
The majority opinion need not get into the strict-vs.rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” that it violates “basic due process” principles, and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” . . . a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’”
Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages. It is this proposition with which I will therefore engage.
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. . . . I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn . . .), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.
To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. . . . Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? . . . DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation.
The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children.
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” —with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.
. . . In my opinion . . . the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. . . .
In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. . . .
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
To read the entire Supreme Court justice's writing above, CLICK HERE.
While some U.S. Supreme Court justices engage in much soul-searching on controversial cases, one justice says the decision on the two most hotly contested current issues is "easy as pie."
". . . Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state." -- Supreme Court Justice Antonin Scalia (10/2/12)
Scalia was recently discoursing before an American Enterprise Institute audience on being a self-described “textualist” who believes the U.S. Constitution should be interpreted exactly as written and intended by the Founders more than 200 years ago.
Scalia has consistently dissented from Supreme Court rulings that have limited application of the death penalty in cases of underage or mentally defective defendants. He has consistently voted to overrule the U.S. Supreme Court’s 1973 Roe vs. Wade decision that legalized abortion.
The Supreme Court, by a 6-3 vote in 2003, overturned Texas’ anti-sodomy law and recognized privacy in the bedroom. Scalia filed a fiery dissent, arguing that the ruling furthered “the homosexual agenda.”
The Supremes will take up same-sex marriage later this term, according to Scalia’s colleague Justice Ruth Bader Ginsburg.
He contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had, Scalia said.
This imaginary justice, Scalia continued, announces that it turns out “’the Constitution means exactly what I think it ought to mean.’ No kidding.”
As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect.
. . . Justice Scalia turned to mocking so-called Living Constitutionalists, who think the document has a dynamic meaning and that contemporary views should be taken into account when interpreting it. . . .
Like his imaginary justice, Justice Scalia sometimes fails to set aside his personal beliefs. Consider his dissent in Lawrence v. Texas, which struck down the state sodomy laws he finds so obviously acceptable under the Constitution. He said Americans have every right to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” in order to protect “themselves and their families from a lifestyle that they believe to be immoral and destructive.”
In that dissent, he argued that sodomy laws don’t violate the equal protection clause.
To read the entire opinion column above, CLICK HERE.
Justice Antonin Scalia said in an interview that legislatures exist to pass laws, not courts, and if the people want to pass laws to discriminate against women or homosexualists, that's fine -- it's NOT unconstitutional. For background, readJustice Antonin Scalia vs. Judicial Activism
Scalia's remarks has spurred criticism from liberals and from some law scholars, though he has expressed this point of view before.
Scalia was specifically referencing the 14th Amendment, which states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Marcia Greenberger, founder and co-president of the National Women's Law Center, told the Huffington Post that Scalia's most recent remarks were "shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."
Asked about the debate in 1868 when Congress was considering the 14th Amendment regarding equal protection – and how that applies today to sex discrimination and discrimination based on sexual orientation, he suggested it's error to apply that standard.
[UC Hastings law professor Calvin Massey asked,] "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?"
[Justice Scalia answered,] "Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."
To read more of the interview, and for a link to the video, CLICK HERE.
