Wednesday, February 17, 2016

Justice Antonin Scalia

As many mourn the passing of Justice Antonin, and with so much being focused today on the politics of what this means for the court, what this means in the political arena and election, and to a lesser extent, what it means for the United States of America, rather than on the man and is work, I am least qualified to comment on the man, his life's work, and his time on the United States Supreme Court.

I met Antonin Scalia in 1969 while he was teaching at the University of Virginia, School of Law, and I was doing post-graduate work there.  I knew him primarily as one of my professors.  But he was more than that.  It was not until we both came to Washington in 1974 that I once again renewed my acquaintance with him.  At the time, he was in the Department of Justice as Chief Legal Counsel. The head of my office was a good friend of his, and so once again, on rare occasions we saw each other, usually for a lunch.  But it was his time, first on the U.S. Court of Appeal for the D.C. Circuit, and later as a Justice on the U.S. Supreme Court, that I really appreciated his genius, and found him modeling for me everything I believed in as a lawyer and judge.

One of his last opinions on the Court, and as frequently was the case, a separate opinion, either dissenting or concurring with the judgment of the Court, was his dissenting opinion in Obergefell v. Hodges.  Here he clearly articulated all of the elements of his jurisprudential philosophy, and for that reason, I include it here in its entirety as a tribute to a great legal giant.  Perhaps a little test for the reader would be to find in this dissenting opinion, those elements that define his jurisprudence and to form an opinion as to whether you, the reader, would agree or disagree with the elements of his jurisprudence, not necessarily with the result he advocated here in Obergefell v. Hodges.

SCALIA, J., dissenting
Nos. 14–556, 14-562, 14-571 and 14–574 _________________
[June 26, 2015]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.

I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

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

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


Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representa- tives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.2

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth.  Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10
2 Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17).
3 U. S. Const., Art. I, §10. 4 Art. IV, §1.
5 Amdt. 1.
6 Ibid.
7 Amdt. 2.
8 Amdt. 4.
9 Amdt. 10.
10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16)
(internal quotation marks and citation omitted).

“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11  But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12  We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt what- ever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its
11 Id., at ___ (slip op., at 17).
12 See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8).
13 Ante, at 10.
Cite as: 576 U. S. ____ (2015) 5

dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or per- haps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its mean- ing.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section
14 Ante, at 11.
15 Ibid.
16 Ante, at 10–11. 17 Ante, at 12–18.

of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School.  Four of the nine are natives of New York City.  Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).  Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.  But of course the Justices in today’s majority are not voting on that basis; they say they are not.  And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.


But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that
18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5.
19See Pew Research Center, America’s Changing Religious Land- scape 4 (May 12, 2015).
Cite as: 576 U. S. ____ (2015) 7

every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” 

These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate con- curring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often
20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).
21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7).
22 If, even as the price to be paid for a fifth vote, I ever joined an opin- ion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that

profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may con- verge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those free- doms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court
allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
23 Ante, at 13. 24 Ante, at 19. 25 Ibid.

really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop- philosophy; it demands them in the law. The stuff con- tained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.


Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamil- ton). 

Wednesday, September 23, 2015

It Does Make a Difference! Words, Facts, History, Truth, Law, and Morals Do Matter Part 2

On this, the 800th anniversary of the Magna Carta, it is important to remember that it stands for the principle of a country of laws and of being under law, rather than under man.  We forget that we inherited this concept of law from the British and from the Magna Carta.  We forget that sometimes, especially in this era of America history, battles are fought regarding the separation of powers and what that means to how the government functions in a country ruled by law.

As Justice Scalia noted in his dissenting opinion in Obergefell v. Hodges, the U. S. Supreme Court decision in which same-sex marriage was deemed a Constitutionally protected fundamental right, a majority of nine men and women on the U.S. Supreme Court, all educated at Harvard or Yale Law Schools, determined that the definition of marriage, which had existed across all societies for many millennia, was inadequate, for the United States.  This notwithstanding the fact that almost all states had banned same-sex marriage just two or three years ago, whether by state legislatures or voter initiatives. It was not sufficient that the Congress of the United States, almost unanimously defined marriage as between one man and one woman in the Defense of Marriage Act less than ten years ago, these same justices also struck down portions of that law by the same majority in United States v. Windsor.

While it is generally accepted that the U.S. Supreme Court can speak with finality on Constitutional matters, including the interpretation of general and sometimes ambiguous terms or word in the Constitution, what is confusing to many in the public, and indeed in government, including the federal and state legislatures, is how words and concepts that have been understood in certain ways over the millennia, and in the case of United States Constitutional law for over 200 years, can be changed at will by the courts generally, and the U.S. Supreme Court in particular.  What I think the dissenting justices said in both Obergefell v. Hodges, and in United States v. Windsor,  was that we have become a nation under man (or at least five members of the Unites States Supreme Court) rather than a nation under law. So, as the Chief Justice wrote in his dissenting opinion in Obergefell v. Hodges, and as I quoted in a prior post:
     If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means, celebrate today's decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  I had nothing to do with it.
Following the execution of the Magna Carta, during the rule of King Edward III (1327-1377), the British Parliament enacted six statutes that clarified the meaning and scope of the liberties guaranteed by the Magna Carta, interpreting the expression "law of the land" which appeared in the Magna Carta as the judicial procedures that protect a subject's liberties.  One of the these statutes, enacted in 1354, introduced the term, "due process of law" to describe the Magna Carta's procedural guarantees.

It might be easy to forget that these words, "Due Process" and "Equal Protection" in our Constitution derive their origin in that document of long ago, and for much of that history, contained a rather consistent meaning.  We forget that the Fifth and Fourteenth Amendments to our
Constitution incorporated the guarantees that no person would "be deprived of life, liberty, or property, without due process of law" from the model of the rule of law that English and American lawyers associated most closely with the Magna Carta for centuries.  Under this model, strict adherence to regular procedures was the most important safeguard against tyranny.

Perhaps we have also forgotten the humble recognition that ambiguities exist and must be respected.  But, we now live in an age in which ambiguities are preferred, and certainties are suspect.

I remember hearing when I first was appointed to the bench that the courts have no armies to enforce their decisions.  How true that is.  Moreover, we look to most professions, such as engineers, medical doctors, architects, computer programers, and the like, for the results that are produced from their labors.

Lawyers, and judges are different.  While it is true that the results of the labors of courts and lawyers are important, often what the media first focuses in on are those results.  Yet, it is the rationale that gives the work of courts at all levels the authority to which they might be entitled by the general public.  Thus, written decisions from the courts gain both authority and respect in the public on the basis of the logical reasoning provided and presumed objectivity, not simply the result.  When that reasoning appears suspect to a large segment of the population, the respect for the courts and the rule of law is diminished, and indeed, so does their authority.  This is why decisions, such as Roe v. Wade, decided by a very divided Supreme Court in 1973, remain controversial even today, and why the rights accorded by that decision continue to be the subject to litigation under many stripes today. Moreover, although there are claims to "settled law" regarding abortion, it is anything but settled.  On the other hand, Brown v. Board of Education of Topeka, Kansas [a unanimous decision of the Supreme Court, by the way, holding segregated schooling was unconstitutional] was both logical and moral in its reasoning and result.

It may be true that public opinion changes over time, and that there are segments of the public, demographically and statistically identified, which may support certain changes in the law or in rights accorded by legislatures and courts.  Whether or not these changes in public opinion are based on reasoned understanding of words, facts, history, truth, prior law, or morals, court decisions, especially those of the Supreme Court, tend to legitimize trends in which certain behavior, once considered immoral and not in accord with history and law, is now okay.  The fact of the matter is that Truth is not dependent upon popularity polls or popular movements.  Rick Warren, writing on this very issue of same-sex marriage, said: "A lie doesn't become a truth and a wrong does not become right and evil does not become good just because it is popular." "No revolution will last, including the sexual revolution. . . . Every lie eventually crumples under its own deception."

Of course, over time, the courts in the United States have ruled that "due process" also limits legislation and protects certain areas of individual liberty from regulation.  What is missing in the majority opinion in Obergefell v. Hodges, an opinion written by Justice Kennedy, but with which we can assume the other four justices who made up the majority agreed, was any clear legal rationale supporting any kind of definition of "due process," or "equal protection."  Rather all we have is a rather breezy statement that "these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and belief," and that "the right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause."  Why? Because the Court said so!

Although the Court treats this as a fundamental right, there is no analysis as to this newly discovered fundamental right and how it is to be balanced against other rights, including freedom of religion and the legal and policy reasons that the states, or even the federal government, might employ to limit "marriage" to its historical and traditionally understood definition and meaning.

And assuming that there is to be a balance made between the policies advanced by the states or federal government and the personal intimate choices made by those who seek to enjoy the benefits of marriage, notwithstanding the lack of complementariness historically associated with marriage, there was no discussion regarding the level of scrutiny to be given to the balancing by the courts as to those competing rights and to any accommodation the states or federal government might be inclined to make. Indeed, although Romer v. Evans did not involve same-sex marriage per se, the Supreme Court chose not to address the heightened scrutiny for the challenged classification, even though the Colorado Supreme Court used the test of heightened scrutiny in its decision.  So, the question arises, both with respect to long-held views on same-sex relations and acts, how fundamental are these rights to homosexual conduct and to same-sex marriage?

So, where does this lead us?

First, it requires us to look realistically at our culture, and the obstacles people face with respect to the exercise of freedom of thought, freedom of religion and belief, freedom of conscience, freedom of speech, freedom of association, freedom to be fully human with all the dignity that comes with being created in the image of God.  But, secondly, and equally important, it offers us the opportunity to engage that culture, for as Desmond Tutu said, describing the South African word, "Ubantu," we can't be human all by ourselves, and when we have this quality of interconnectedness, we can be known for our generosity.  In the West, we too often think of ourselves as individuals, separated from one another, whereas, when we see ourselves connected. what we do affects the whole world.

What is strange in both the Unites States v. Windsor and Obergefell v. Hodges cases was that in both opinions, Justice Kennedy discussed the multiple millennia history of how "marriage" had been understood and defined without giving much deference to that history.  This brings up the basic philosophical era in which we live.

Most of us have lived with what is generally known as the Post-Enlightenment Modern
Consciousness Challenge.  The challenge was this: The general aspiration emerging from the Enlightenment, and to a large extent still exists today, was to provide for debate in the public realm, or public square as I have identified it above, standards and methods of rational justification by which alternative courses of action could be judged as just or unjust, rationale or irrational, enlightened or unenlightened.  The idea was that reason would displace tradition and authority.  For a belief to be rational, it must meet certain conditions of rationality.  But it defines what those conditions must be, how they are to be based on adequate evidence, and further, what kind of evidence is adequate to support the asserted belief.

There is more however, because there is the assumption that there is a connection between rationality and responsibility.  That is, if a belief is not rational or reasonable according to some prescribed way of determining reasonableness, then one is acting irresponsibly by holding on to such a belief. It becomes immediately obvious that if someone, such as a county clerk in Kentucky (i.e., Kim Davis) holds to a belief in some form of "natural law" and higher law regarding marriage, that person is acting irresponsibly in both holding to that view and in acting in a manner consistent with that view. But, more about this in the next post.  The point is that knowing Truth, or holding to strongly held moral beliefs consistent with that understanding of Truth, involves a duty.

With the emergence of the Post-Enlightenment Modern Consciousness Challenge, which separated any theories of "natural law," morality, Truth based on some objective reality by reason or divine revelation, and tradition from theories of law, came ideas of social justice.  These ideas meant that
justice must prevail in the social sphere, and included ideas such as: one should have the power to determine what on can have or cannot have; one should have the power to take away from a person or group of people to give to others without any obligation to earn it; and the essence was the elimination of poverty, suffering, and the elimination of all differences that erect walls between people.

This led to positivism, both philosophically and legally, and the further separation of morals from an external or universal standard found in religion or idealism.  What was distinctive about positivism was that history was described as going through certain definite stages, which Auguste Comte, a philosopher and the founder of sociology called the religious, the metaphysical, and scientific stages. The earlier two stages were dismissed as primitive and useless, and the scientific stage thought to be the most productive.  Legal positivism opposed natural law theory and denied any connection between law and morality.

During the 19th Century, in reaction to the cold logic of the Enlightenment, there arose the movement known as existentialism.  The term applied loosely to the irreducibility of the subjective, personal dimension of human experience and life, particularly with regard to the aspiration to become an "individual."  What Frederick Nietzsche described with his forceful refutation of any theistic worldview in his parables, The Madman and Thus Spake Zarathustra, was life without God and without morals.

In post-modernity, which is a central fact of human life today in the first, truly global culture, doubt is a pervasive factor, permeating into everyday life.  It institutionalizes the principle of radical doubt and insists that all knowledge takes the form of hypothesis.  Systems of accumulated expertise represent multiple sources of authority, frequently internally inconsistent and divergent in their implications.  Since ideas cannot be rejected, the truth claims of individuals or groups are marginalized and ultimately rejected as narrow-minded, bigoted, extreme, or out of date.  This results in repression of moral questions which our day-to-day life pose, but which are denied answers.

As second trend is "privatization" that is a process that produces a cleavage between private and public spheres of life, and focuses on the private sphere as a special area for expression of individual freedom and fulfillment.  While it includes benefits such as the opportunity for individual freedom, to buy more stuff, to travel more freely, to be free from the constraints of community, tradition, and other people, it is also limiting.  For privatization, in areas of religion and moral belief systems, allows freedom of religion, but only so long as it is confined to the private, personal preference, family, and private association.  This sets up a sort of harmless spiritual reservation established by the architects of secular apartheid.

A third trend of post-modernity is pluralization, or the process whereby the number of options in the private sphere radically multiplies at all levels, especially with regard to worldviews, faiths, and ideologies.  This is beneficial because it brings richness and a variety of experiences to life, and openness to different people, traditions, and life differences, with the opportunity to examine one's own presuppositions and ideas.  However, because of the increase in choices and change, and the modern question marks that always seem present, there is almost an automatic decrease in commitment, continuity, and conviction in relationships, ideas, worldviews, and faiths.

Although Justice Kennedy seemed to touch on all of these in his opinion for the Court, he did not clearly articulate what the adequate evidence was to support the asserted belief that was theoretically based on rationality, however defined.  Indeed, what was missing was any clear expression of his, or of the majority's presuppositions, that drove the decision to abandon the clear definition of "marriage" which has existed for many millennia without challenge,

Rather, upon careful reading of the majority opinions in both Unites States v. Windsor and Obergefell v. Hodges, one can come away with the idea that existentialism and the thinking of post-modernity rules the Court.  The majority dismissed religious moral arguments opposing same-sex marriage as simply animus.  Justice Kennedy gave minimal lip service to religious freedom concerns when he wrote in Obergefell v. Hodges, that "religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that by divine precepts, same-sex marriage should not be condoned."  He continued saying that such individuals may continue to teach those principles that are so fulfilling and central to their lives and faiths, and to "their own deep aspirations to continue the family structure they have long revered."  This is a very privatized form of religion that has no basis in any principle other than the feelings and beliefs of those who are now marginalized and are becoming excluded from participation in the public square.

One well-known sociologist, writing about sociology as a discipline, commented that what many sociologists lack are the foundational philosophical and moral understandings on which to evaluate the data that they collect and regard as truth.  My sense is that many judges are similarly ill equipped.  As I have written before, the issue is not so much that judges, and Justices differ 

Questions of religious freedom, and especially as they have been raised by dissenters in Obergefell. will be addressed in future posts.

So, how does one engage the culture based on what Justice Kennedy wrote as the foundation for his opinion that the Constitution in some way grants a fundamental right to same-sex marriage?  As he noted, numerous same-sex marriage cases have reached the United States Courts of Appeals in recent years.

There are several things we might note here when we look at Court decisions that affect our analysis of what is going on.

First, I take as settled law the principle laid down in Marbury v. Madison (1803).  There, the U.S.
Supreme Court held that the judicial power of the United States is extended to all cases arising out of the Constitution. In so holding, the Court said:
The constitution is is either a superior paramount law, unchangeable by ordinary means, or is is on a level with ordinary legislative acts, and like other acts, may be alterable when the legislature shall be pleased to alter it.
     If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable.
This raises the question now before Court and the United States as to the validity of some of the interpretations of the Constitution, especially when they unsettle established law and definitions long held without question, and when these interpretations, not only stretch the understood text of Constitutional provisions, but also unsettle the entire country.  Is the Supreme Court of the United States the only body, or only government authority, capable and allowed to interpret the Constitution?  How far does the principle of judicial review of Marbury v. Madison extend to hotly contested public policies and to interpretations of Constitutional provisions long understood in a certain way to postmodern anthropological understandings if humans, human nature, and human institutions that have existed over many millennia?  Why are we not having this conversation in our political institutions and in our public square?

This also raises another important point regarding interpretation of the Constitution, and probably also in statutes, and perhaps in the interpretation of culture.  One of the sides of this debate is addressed in the just released book by Supreme Court Justice Breyer, The Court and the World: American Law and the New Global Realities.  This book continues a debate, primarily most recently between Justice Stephen Breyer and Justice Antonin Scalia, regarding interpretation.  Whereas Justice Scalia is the most vocal proponent of the originalist perspective on interpretation, Justice Breyer represents the more pragmatic view of judicial decisionmaking, where the idea is that judges should give weight to the consequences that their decisions produce.

The debate is central to the notion of the country being under the rule of law, as understood since the Magna Carta, or something else, such as under the rule of man responding to changing circumstances.

The thesis of originalism is that the text of the Constitution, and only the text, is the supreme law of
the land, binding on the political branches of the government, both federal and States.  Were this not the case, then the Supreme Court would never be empowered to overrule itself, that is, its past decisions as it has done several hundreds of times.  Moreover, the argument is that the originalist position is central to the concept of the rule of law, constitutionally limited government, and the separation of the three powers of government.

On the other hand, the basic thesis of pragmatic perspective is the call for the "transformative purpose" of the Constitutional text, which "embodies an 'aspiration to social justice, brotherhood, and human dignity that brought this country into being.'"  According to this perspective, the Justices, and indeed we as judges, lawyers, and people, read the Constitution as only 20th Century or now 21st Century readers can.  As the late Justice Brennan once said, "But the ultimate question must be, what do the words of the [Constitutional] text mean for our times."  In other words, the meaning of the text can change with changing circumstances and ages to more adequately reflect the prevailing views of the times.

But, this raises another issue that is hotly debated today among Justices of the Supreme Court. According to Justice Breyer in his new book, the Supreme Court cannot do its job of deciding cases before it without a careful understanding of foreign law and practice.  He argues that the "conservative" alarm about this fails to reflect this new reality.

My sense is that Justice Breyer's point may have a certain ring to it in many cases, such as those addressing capital punishment for juveniles, and in particular, Justice Kennedy's opinion in Romer v. Evans, in which the Supreme Court struck down the 1992 Amendment 2 to the Colorado Constitution, which prohibited all legislative, executive, or judicial acts at any level of state or local government designed to protect the named classes of homosexual people and lesbians and his opinion in Laurence v. Texas, holding that the Texas law against same-sex consensual sodomy was at odds with the Due Process Clause of the Fourteenth Amendment.  In part, the Court's rationale in all of these case drew on foreign law and practice.  In doing so, Justice Kennedy, in Laurence v. Texas, attempted to show that the late Chief Justice Warren Burger was wrong in Bowers v. Hardwick, when he wrote in a concurring opinion that Western Civilization had consistently condemned same-sex intimacy.

Moreover, the Supreme Court, in its ruling striking down bans on same-sex marriages, ignored the European Court of Human Rights's ruling that upheld such bans, such as in Hämäläinen v Finland [2014] ECHR 787.

Members of the Court and members of the U.S. House of Representatives strongly objected to the Court's use of foreign law in both death penalty cases and sodomy cases.  Why have the references to foreign law in these death penalty and sodomy cases produced such strong objection, especially when there is no foreign law question presented?  This is a complicated legal discussion for another day, and probably not here in this blog. But, the question is how the courts, and particularly the U.S. Supreme Court can use foreign law and practices that are currently emerging around the world to understand and interpret the words of the U.S. Constitution, especially those broad and currently ambiguously understood phrases, such as: "Due Process of Law" and "Equal Protection Under the Law."

Second, there is no evidence that any of these cases, or the pressure for same-sex marriage, reached any court before the Supreme Court decided Bowers v. Hardwick (1996) written by Justice Kennedy invalidating the Amendment to the Colorado Constitution regarding same-sex relationships.  Then the Court in Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986), thereby decriminalizing homosexuality.  This led to the Court's decision in United States v. Windsor (2013) when the Supreme Court upheld same-sex marriage and overturned the Defense of Marriage Act.

What seemed clear from Justice Kennedy's opinion in Obergefell v. Hodges, was that the majority did not think that democracy worked at the ballot box.  Rather, they seemed to think that the movement toward this new and more enlightened approach to marriage, and indeed to sexual relations generally, was too slow.  Therefore, it only seemed proper that the courts had to step into the fray and decide what the people were unable to decide according to the common wisdom of the political, academic, and media class, and that the legislatives actions and ballot initiatives in the vast majority of states were inconsistent with such wisdom.  It was not so much that the states were divided on the issue, as suggested by Justice Kennedy, but that the division was largely between the people and the courts, and particularly the Supreme Court that opened the door to the litigants seeking same-sex relationships, including marriage.

Whether these cases would have ever reached appellate courts is unknown.  But what seems clear is that the Supreme Court in this series of cases legitimized sexual activity that had long been thought to be immoral.  This, I think, gave the necessary momentum to a growing movement that sought legal rights comparable to those enjoyed by traditional marriage partners.  Indeed, they were couched in terms of civil rights not unlike those advanced in race relations cases.  What the Court gave the country, and the world, was a sociological tract promoting a movement based on some kind of data to which we have not been informed.

Third, it seems strange that a movement which started in the U.S. Supreme Court in United States v. Windsor and the line of privacy/same-sex relations cases preceding it that the Supreme Court must now rely on the decisions of the lower appellate courts that extended some of the rationale of the Supreme Court's earlier decisions, such as, Lawrence v. Texas, Romer v. Evans, and United States v. Windsor.  And this, notwithstanding the fact that the vast majority of states opposed same-sex marriage and the departure form the historically recognized and traditional definition of marriage.

We hear the constant declaration from so many circles that we, as a people, and particularly government officials at all levels, need to respect Obergefell v. Hodges, as the law of the land.  Yet we wonder what the law of the land was before United v. Windsor and Obergefell v. Hodges.  Without hearings as to the impact of the Court's decision in United States v. Windsor when the Court overturned major portions of the Defense of Marriage Act, and without serious consideration of legislative acts, enacted by state legislatures in accordance with democratic principles and ballot initiatives, what was the law of the land then?  How many federal and state statutes conferring rights and obligations were overturned by the Court in Unites States v. Windsor? 

Indeed, considering only the law defining marriage, notwithstanding the new understanding by the Supreme Court of the Fourteenth Amendment to the Constitution, where marriage, although not mentioned in the U. S. Constitution, is now defined inconsistently with its history.  How did this new understanding become the law of the land?  What was the law of the land regarding marriage, that is, prior to 2013?  What are we to make of Reynolds v. United States, when the U.S. Supreme Court, in 1878, in its first extended discussion on First Amendment and the so-called separation of church and state, announced that polygamy was inconsistent with traditional understanding of marriage and that religious belief was no defense to a charge of bigamy.  The issue was the conflict between the U.S. law criminalizing bigamy and polygamy authorized in the Territory of Utah and recognized by the Church of the Latter Day Saints (Mormon Church) which stated that it was the duty of male members of the church to practice polygamy.  Of course, the issue was polygamy rather than same-sex marriage, but the rationale rested on the nature of marriage as it was understood at the time.

The Court's majority, speaking through Justice Kennedy, cited and quoted Alexis de Tocqueville (;  In this regard, it might be good to remember what Tocqueville wrote 180 years ago, that seem quite apropos to what we see the Court doing.

     The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.  Hence, all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings.  As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs.  The jury extends this habit to all classes.  The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at least the whole people contract the habits and tastes of the judicial magistrate.

Fourth, much of human wisdom is tacit knowledge.  That is, it is part intuitive and comes to us from different sources.   Michael Polanyi first introduced the term into philosophy, arguing that "we can know more than we can tell."  Without some form of shared experience, it is extremely difficult to share each other's thinking processes.  Michael Polanyi presented the idea of two types of knowledge: One which was explicit and expressed in words, numbers, diagrams, symbols, and propositions that could be communicated.  The other, which was possessed by individuals without their awareness that it existed.

Tacit knowledge was highly personal and hard to formalize.  As a result, it was hard to communicate and share with others.  There were two dimensions to tacit knowledge.  The one focused on awareness, and the other on subsidiary awareness.  Thus, for example, in one's use of a hammer or the playing of the piano, the focus was not on the subsidiary knowledge or skill, such as holding the hammer in a certain away, or how the the fingers were placed on the keys of the piano or the feet on the pedals.

Thus, have you ever known something without knowing how, or maybe why?  Have you ever instinctively felt one way despite intellectual evidence to the contrary?  That instinctual feeling is tacit knowledge which is all of our unconscious understanding and which governs all of our habitual daily interactions, such as acknowledging people as we pass them, or seating in the same seat or desk although it was not assigned to us.
While this type of tacit influence on our actions may be innocuous, and indeed necessary for continuing in day to day social interaction harmoniously, tacit knowledge may have a greater influence on our actions, emotions, and decisions than we are aware.  In each generation, a small group of people try to revise stories, societal beliefs, theories, commonly accepted practices and are inevitably met with fear and anger of many who want things to stay the same.
For example, one writer describing the situation in his own family wrote:
     Although many people can intellectually and consciously accept something, they cannot always reconcile it to their instinctive feeling.  My parents are good friends with a homosexual couple, and have helped out with many fundraisers for the gay community. Consciously and intellectually, they believe in gay rights, and they will attend their friends' wedding this winter.  Yet tacitly, they still sometimes feel uncomfortable.  "I know it's irrational," my dad admits.  "Intellectually, I support them and believe that they have the right to get married, but sometimes it still makes me uncomfortable."  He isn't, I am sure, the only one who has trouble reconciling conscious knowledge to his tacit understanding.
The very idea of marriage involves both explicit knowledge and tacit knowledge.  My sense is that part of the problem is that the conflict between explicit knowledge and tacit knowledge is due to the overload of information that is taught in the schools, taught in media and movies, and taught in the political arena, especially in the courts, which knowledge conflicts with the accepted wisdom of ages past expressed propositionally and in the experience of the human race, and from which much of our tacit knowledge might be derived.  In times past, the Church's beliefs and teachings, including those that said that the earth was the center of the universe and that marriage was between one man and one woman forever, were ingrained in society.  Modern society is structured differently.  While some still recognize and follow that tacit knowledge, not really examining where it was derived, they feel the conflict with what society and the courts seem to say is good and right and true.

Until just a decade or less ago, and certainly within our generation, marriage was thought of as a permanent, exclusive union of a husband and wife.  It is when it is attacked, that the need for a formal, explicit defense arises.  As one writer put it, this is like "explaining why wheels are round, but it has to be done."  This means going back to first principles.  Of course, marriage has been under attack for many decades as evidenced by the rate or divorce, out-of-wed births, the frequency of cohabitation and now "hook-ups," and the general trends resulting from the sexual revolution.

An ancient Greek philosopher, Aristotle, suggested that we can understand any community by analyzing three factors, namely, the actions that the community engages in, the goods the community seeks, and the norms of commitment that shape the community's common life.  For example, in the academic community, or in academia, members of the community engage in academic activities, such as research, writing, teaching, mentoring students, grading papers, etc.  Members of the academic community are oriented toward the goods or knowledge and truth.  All activities and efforts, such as research, writing, teaching, mentoring, grading student papers are directed toward eliminating ignorance from our lives, seeking a better appreciation of truth and of the world around us.  And the norms that are pursued are commitment to academic integrity, academic freedom, commitment to academic honor codes, and assisting others in the pursuit of knowledge and truth. As will be discussed more , we can understand the marital relationship in the same way.

The question arrises as to what makes marriage different from other forms of community, such as sports teams, book clubs, community organized civic projects, religious communities?

Fifth, the debate that has existed in the United States, and indeed elsewhere, is not about marriage equality.  Everyone favors marriage equality, and the Supreme Court decision in Loving v. Virginia in 1967 invalidating bans against interracial unions is a clear example of that.  Rather, the debate is about the very definition and nature of marriage, a debate which has been going on for more than 150 years as certain forces have sought to abolish marriage and the family.  Only if one knows what marriage is, are the arbitrary distinctions from laws that treat them differently for no good reason subject to challenge. So, one must answer the question, what is marriage, before engaging in a discussion about marriage equality. This would require exploring what good reasons there are for marriage and for any policy designed to abolish or change it significantly from what it has been understood through the millennia can there be a debate or decision about marriage equality and whether a given policy violates the principle of marriage equality.  "Every law makes distinctions.  Equality before the law protects citizens from

Justice Alito in his dissent in United States v. Windsor described "marriage" as a "comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life."  The question might be raised by what he meant by "comprehensive."  But, maybe we really know what it means since there is the element of complementarity necessary for "producing new life."  Isn't that what Justice Kennedy was talking about when he wrote for the majority about the understanding of what marriage was through the millennia, or did he have something else in mind?  If not, he was not clear about what he meant.  On the other side of the argument, he cited a proponent of the consent based idea that marriage is marked by primarily by an intense emotional union -- a romantic, caregiving union of consenting adults.  If that is all Justice Kennedy required, then there is no permanency attached to whatever union we seek to call marriage.

Sixth, the thread that runs through the Court's decision in Obergefell v. Hodges is that the central to marriage are individual autonomy, the committed, two-person union unlike other relationships, the right to establish a home for the care and education of children which are in someway central to the liberty protected by the Due Process Clause, and the fact that somehow marriage is a keystone to social order.  But these might not make much sense as I will discuss in the next post.  What seems missing in all of this discussion by the Court is what Justice Alito points out in his dissenting opinion;
     For today's majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.  The Justices in the majority claim the authority to confer constitutional protection upon the right simply because they believe it is fundamental.
According to Justice Alito in his dissent, the majority argues that the State has no valid reason for denying that right to same-sex couples.  This reasoning, according to Justice Alito, with which I agree, is dependent upon a peculiar understanding of the purpose for civil marriage.  The argument is simply that the purpose of marriage is to promote the well-being of those who choose to marry.  It may provide fulfillment in the time of emotional need and support in times of need.  Perhaps, but the argument does not show how the needs of society are met, and how the common good which is central to a functioning society is fulfilled, except may that those who live in stable, fulfilling, and supportive relationships might be better citizens.

If. as the States argue here in defending their laws regarding traditional understanding of marriage seem a little pragmatic, it is because they are and use the language of that characterizes most American political discourse.  Nevertheless, the basic argument is that "States formalize and promote marriage, unlike any other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children."  Moreover, as Justice Alito wrote, "If this traditional understanding of the purpose of marriage does not ring true to all ears today, it is probably because the tie between marriage and procreation has frayed."

Implicit in Judge Alito's dissent is the warning which he articulated in his dissenting opinion in United States v. Windsor where he wrote:

     The family is an ancient and universal human institution.  Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage -- for example, the gradual ascendance of the idea of romantic love as a prerequisite to marriage -- have had far-reaching consequences.  But the process by which such consequences come about is complex, involving the interaction of numerous factors, and trends to occur over an extended period of time.
     We can expect something similar to take place if same-sex marriage becomes widely accepted.  The long-term consequences of this change are not now known and are unlikely to be ascertained for some time to come.  There are those who think that to allow same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.
      At present, no one -- including social scientists, philosophers, and historians -- can predict with any certainty what long-term ramifications of widespread acceptance of same-sex marriage will be.  And judges are certainly not equipped to make such an assessment.  The Members of this Court have the authority and the responsibility to interpret and apply the Constitution.  Thus, if the Constitution contained a provision guaranteeing the right to marry a person of same sex, it would be our duty to enforce that right.  But the Constitution simply does not speak to the issue of same-sex marriage.  In our system of government, ultimate sovereignty vests in the people, and the people have the right to control their own destiny.  Any change on a question so fundamental show be made by the people through their elected officials.
I accept the idea that the Supreme Court, or any court for that matter, in interpreting the Constitution, may often do so protecting the rights of those in a minority.  After all, the Constitution is not interpreted on the basis of some majority opinion, authority, or rule.  However, when the people have spoke so clearly through their State legislatures and representatives in the U.S. Congress, as they did in the Defense of Marriage Act which was overwhelming approved by an almost unanimous majority and signed into law by the President, the courts, including the U.S. Supreme Court owe some deference to the voice of the people, especially when it is clear that the Constitution is silent on such and important point.

Nevertheless, the Supreme Court seems to flounder its way through articulating how the particular premises upon which it based its decision to overrule many millennia of understanding and law regarding marriage are unique to its definition of marriage, as opposed to any other social arrangement. On its face. these decisions in United States v. Windsor and Obergefell v. Hodges appear to be contrary to the historical understanding held through the millennia, which the majority, in an act of judicial tyranny, tosses aside when it describes the features of marriage as based on four premises, including consent and caregiving.  Otherwise, the premises, such as they were stated by the Court as rationale for changing history and stability in society in the furtherance of the common good simply do not make sense.

So with these points in mind and without clear legal reasoning, we take the U.S. Supreme Court at its word when it describe the four premises on which it relied in Obergefell v. Hodges, and examine the validity of each of those premises in the next post and their implications for civil society.