“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?
In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “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.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “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.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
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. 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.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.
By: Jay Michaelson, The Daily Beast, June 27, 2015
“I Believe That We Can Win”: The Christian Right Has Lost Political And Cultural Influence
Investigative journalist Brad Friedman has observed that America is moving in a progressive direction, despite the mainstream media’s “center-right nation” shibboleth. Despite the obstacles that have been placed in the pathway of progressives, Friedman is correct beyond dispute.
Think back to a decade ago. Same-sex marriage was considered an abomination in large parts of the country. Christian fundamentalists were flexing their muscles as never before. Rush Limbaugh and Fox dominated the American media landscape. The Bush administration had launched a war on climate science. Massachusetts Governor Mitt Romney was gay-bashing his way to national prominence.
Today, marriage equality is the law of the land. The Christian Right has lost political and cultural influence. Limbaugh’s career is in freefall, and Fox may soon follow. Pope Francis has called upon the world to fight for climate justice. As for Romney, well…
The signs of progressive power are everywhere: the growing momentum of Bernie Sanders’s campaign for the Democratic presidential nomination, the profound failure of the right-wing effort to “repeal and replace” Obamacare, the increasing acceptance of transgender Americans as full and equal citizens, the smashing success of the fossil-fuel divestment movement.
No, we haven’t reached the promised land yet. There are still so many forces of right-wing depravity in our country–some with positions in Congress, some with platforms on cable, some with pistols in churches. Those forces of depravity will not retreat quietly. However, they can and will be defeated.
We’re moving forward. We’re going to make America into what it should have always been all along: a country were any man or woman can rise to the height of his or her potential regardless of race, gender, religion, sexual orientation, disability or income; a country where our public schools never have to lack for adequate funding; a country where we don’t shuffle off to war unless we absolutely have to; a country where we recognize the separation of billionaire and state; a country where we look out for future generations by dramatically reducing our greenhouse gas emissions; a country where a woman can exercise her right to choose in peace; a country where maniacs don’t have easy access to guns; a country where knowledge is embraced and ignorance is scorned.
We’re getting there. Yes, it’s been a long road. We’ve had to endure the racist savagery unleashed by the Southern Strategy. We’ve had to endure that force demonic known as Reaganomics. We’ve had to endure an impeachment over an erection and two stolen elections. We’ve had to endure a lie-based war for oil which left innocent blood on Iraqi soil. We’ve had to endure six years of deranged drama from the bigoted enemies of Barack Obama. It’s been a long time coming…but we’re getting there.
We will leave our children and grandchildren a proud progressive country.
We will repair the damage the right wing has inflicted upon our fair land.
We will remedy the injustices that hurt so many of our fellow citizens.
We will declare independence from ignorance and fidelity to fact.
We will move this country forward forever.
By: David Atkins, Political Animal Blog, The Washington Monthly, June 28, 2015
“The GOP Gay Marriage Freakout”: The Modern Republican Party Is Operating More And More Like An Underground Crime Network
Marriage equality has won at the Supreme Court, but the fight over gay marriage is far from over. Now we enter the Republican temper tantrum phase.
Even before the Supreme Court’s ruling, several prominent Republicans had pledged to disobey any high court ruling in favor of marriage equality—and had called on their fellow Republican leaders to do the same.
For instance, Republican presidential candidates Rick Santorum and Mike Huckabee have both signed a pledge that reads, “We will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”
Huckabee also challenged the authority of our nation’s highest court when he said, “The Supreme Court can’t overrule God.”
Republican Senator Ted Cruz and Representative Steve King also called for Congress and any future Republican president to flagrantly ignore such a Supreme Court ruling.
Let’s be clear: These are current and former officeholders, who have taken an oath to uphold the laws of our nation, literally pledging to violate those laws as interpreted by the Supreme Court.
In any reasonable political environment, this should be a disqualifier for elected office. Certainly, measures should be considered to charge those of them who hold office with violating their oath.
Republicans in Congress recently filed suit against President Obama for using his lawful executive authority to de-prioritize certain deportations of immigrants. Said Republicans were outraged! Now here we have Republicans treading far beyond the legal gray area, actually pledging to violate their duties and break the law.
I’d love to say such behavior is unimaginable. But unfortunately, it’s becoming predictable within the GOP.
“If the court tries to do this it will be rampant judicial activism,” Cruz said before the ruling. “It will be lawlessness.”
No, actually, saying that as a senator or as president you will disobey the ruling of the Supreme Court of the United States of America—that is the very definition of lawlessness.
Of course this attitude comes from the same party that after 60 failed votes to repeal Obamacare and two now failed legal challenges rising all the way up to the very same Supreme Court, still pledges to keep trying to undo the law. The modern Republican Party is operating less like a responsible partner in governance and more and more like an underground crime network—continually abusing and threatening the otherwise democratic process if it doesn’t get its way.
So far, in the aftermath of the decision, Republican candidates have offered statements affirming their opposition to the ruling and leaning on the new, more modest GOP chestnut that “religious freedom” must be protected.
Governor Huckabee took to Twitter after the ruling, saying that the Supreme Court could no more overrule “God’s nature” than overrule gravity. But alas, just as it has in fights for justice and equality throughout history, the Supreme Court has done its job—interpreting the Constitution of our nation and applying it equally to all Americans.
Meanwhile, Wisconsin Governor Scott Walker issued one of the more curious formulations. “I call on the president and all governors to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs,” he said in a press release. “No one wants to live in a country where the government coerces people to act in opposition to their conscience.”
Apparently, Walker is afraid people will be forced to get gay married. Don’t worry, America, that’s Phase 143 of the gay agenda. It’s still early. Right now, we’re preoccupied trying to uphold the basic values and laws of America—which elected officials of both parties should be doing, too. But frankly, when it comes to some Republicans, it’s indeed more likely that gravity will be overruled and pigs will fly.
By: Sally Kohn, The Daily Beast, June 26, 2015
“You’re Not Worthy Of Respect”: Clarence Thomas’s Disgraceful Definition Of Human Dignity
During a break on my reporting trip to Ferguson, Missouri this spring, I visited the museum inside the Old Courthouse, a magnificent, green-domed federal-style building that sits in the shadow of the St. Louis Arch. It houses artifacts and displays relating to the Dred Scott case, tried there in 1847; ten years later, in 1857, the United States Supreme Court would hand Scott—an enslaved man suing for freedom for himself and his family—his final judicial defeat. In arguably the worst decision ever handed down by any American court, in words that are displayed today inside that museum in large, bold, white letters, Chief Justice Roger Taney wrote that African Americans were “beings of an inferior order,” so much so that they had “no rights which the white man was bound to respect.”
Taney’s statement is anathema to the very idea of equality. But he asserted that the Founding Fathers, as indicated in the Constitution itself, would have thought the same of people who looked like Scott, or me. In historical terms, Taney wasn’t far off. The Constitution needed correcting, and it wasn’t until the Fourteenth Amendment, ratified in 1868, eleven years after the Scott decision, that this got cleared up.
But I wondered again this morning, as marriage equality became the law of the land, what Constitution Clarence Thomas is reading, and in what America he lives. On Friday, Thomas—a black man who grew up in the Jim Crow South, a man who should know precisely the meaning of equal protection under the law—issued one of four individual written dissents in the case, Obergefell v. Hodges. It begins in the strict constitutionalist vein that Thomas is known for, but broadens to cover not only the Constitution but also the nation as a whole. For Thomas, the decision isn’t so much about laws as it is about principle:
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.
Let’s consider this passage literally, and let’s consider the kind of liberty that the “Framers” recognized. The Constitution was ratified in 1787, in a new nation in which the enslavement of kidnapped Africans and their descendants—to say nothing of the abuse, murder, and rape they suffered—was already a national institution. Their notion of liberty didn’t include folks who looked like Dred Scott, me, or Thomas himself; Thomas’s “liberty” wasn’t open to gay or lesbian Americans in that day and age, either.
In a paper written in time for the nation’s bicentennial 39 years ago, Louis Crompton noted that homosexuality was punishable by the death when this country began. Its abolition plodded through the states over the next few decades. (In 1792, Thomas Jefferson, Crompton notes, called for the castration of those found guilty of sodomy in a Virginia bill.) Penalties were reduced to imprisonment in most cases; South Carolina, perennially the last state to act in the name of its most vulnerable citizens, was slowest to change, repealing their death penalty only eight years after the Civil War. To use Thomas’s words, I’d argue, strongly, that all of this constitutes the government stripping away the dignity of those suffering legal punishments for being who they are.
Thomas, however, appears to define dignity more strictly, as the quality of being worthy of respect. That’s strange to hear coming from a man who, while the head of the Equal Employment Opportunity Commission, sexually harassed Anita Hill and likened criticism of his reprehensible behavior to a “high-tech lynching.” But I’ll allow that the idea of preserving dignity and therefore proving oneself as worthy of respect is an idea Thomas, a high-achieving student who nonetheless chose to study English literature in college to help him shed the burden of his Gullah dialect, is quite familiar with.
What I can’t stomach, however, is Thomas’s tendency to ignore the systemic effects of prejudice, and in the process serve as an agent to foster them. By not recognizing what plagues so many, he allows hatred and ignorance to swell. Thomas clearly wants marginalized people to pull themselves up by the bootstraps, all while he’s committed to taking those same bootstraps away. This is his legacy, a disgraceful sequel to the term of the man he succeeded, Thurgood Marshall. Granted, Thomas sometimes interprets symbols—such as burning crosses or Confederate flags—as offensive. But the actual, institutional bias those symbols promote escapes him. Thomas frequently infuses respectability politics into his rulings, which demonstrates his continued obliviousness to reality: It is not the responsibility of a vulnerable people to convince the powerful they are worth protecting. It is not the duty of the marginalized to prove they have dignity and therefore become worthy of being treated as equals; that task lies squarely across the shoulders of the rulers. And, in this regard, Thomas’s blindness shows. This is a person who, during the demonization of black people in the Reagan era, thought we were the main problem.
He returns to the notion of dignity later in the dissent in a passage that is even more shocking and incorrect. Citing the Declaration of Independence’s “all men are created equal”—a phrase that in an increasingly gender-aware nation, should already raise alarms about a lack of inclusion—he writes:
…human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
We live in a nation whose industries, cities, and towns grew out of fertile soil wet with the blood and sweat of slaves. The United States has long been full of unmarked geysers of prejudice, blasting their ignorance on continuously marginalized people—including the LGBTQI Americans who in many ways continue to live, despite this ruling, as second-class citizens. Marriage equality does not close the housing, employment, and healthcare disparities that exist between us cisgender straight folks and those who are not. It is only the beginning of another long march.
We live in a nation where a young white man with a racist manifesto can study the Bible with a group of African Americans and then murder them, and in the aftermath the chattering class will engage in debates about whether a racist act has occurred. We live in a place where Matthew Shepard can be slain for being gay in 1998, and Wyoming, the state where he died, can remain one of five without a hate-crime law nearly two decades later. This is a place where, since its founding, the government has had a strong say over just how much dignity a person is allowed. The right of same-sex couples to marry was one that many straight men were not bound to respect, depending upon their state. There are still many of these men, but they cannot remove the dignity the government has today bestowed.
Dignity may be innate, but that doesn’t mean it can’t be taken away from you. It can become a two-way street. You can consider yourself worthy of honor or respect, as Oxford defines it, all you wish. But if institutional discrimination deprives you of such basic human rights as health care, education, and the right to marry whomever you love, honor and respect is not afforded you. Sometimes, in the course of history, states and people need to be bound by law to respect you. Relying upon human nature, or the Founders’ supposed intentions is ridiculous when you consider yesteryear.
Thomas, having lost the argument over marriage equality, chose to offer a pernicious, unsympathetic dissent that gives short shrift to the forces of discrimination and subjugation legalized by government while further emboldening his self mythology, this legendary story he keeps feeding us. Thomas would have you believe that because he himself could survive the indignities forced upon him by Jim Crow—a system of legal discrimination that eventually came to be made illegal, after a variety of Supreme Court decisions very much like today’s ruling—and that somehow, others should be able to endure something similar without the benefit of the very legal recourse that he can deliver from his perch. Using himself as the basis for a legal argument is asinine. Doing so in the service of discrimination is inexcusable.
By: Jamil Smith, Sr Editor, The New Republic, June 26, 2015
“Martyrs To Marriage Equality”: The Famous Bakers And Florists Of Conscience
The thing that really amazes me about much of the conservative reaction to Obergefell v. Hodges, and indeed much of the religion-based complaints over LGBT rights generally, is the sense of personal grievence. I mean, on the one hand you’ve had people who’ve been persecuted, bullied, denied equal rights for ages, finally getting the right to do something the rest of us take for granted, and on the other hand you have people who are offended by them. This helps explain the hilarious fixation among conservatives about identifying the fifteen people in America who might be so homophobic that their “religious views” come into direct conflict with anti-discrimination laws–you know, the famous Bakers and Florists of Conscience. Agitating the air to make this extremely marginal “grievance” into something tangible, and then inflating it wildly with all sorts of specious slippery-slope arguments that next thing we know the Catholic Church will be forced to make gay sex a sacrament, has pretty much been the sum and substance of the “religious liberty” backlash.
And so today we find all too many Christian conservatives unable to feel empathy towards people expressing joy at their now-established ability to get married, and instead making themselves out as martyrs, to the everlasting embarrassment, I am quite sure, of the actual Christian Martyrs of the Ages who suffered harm to more than their sensitivities or prejudices.
I was driven to write this today not by Bobby Jindal or Mike Huckabee or the other pols trying to put themselves at the head of a pathetic parade of outrage, but by a post at the Federalist by “international pro-family” advocate John-Henry Westen warning of the totalitarian repression about to hit Christians, as evidenced by his experience with what had happened in Canada and Europe.
And of what is this wave of repression composed? Basically lawsuits, most of them withdrawn.
As anyone who has been to law school can tell you, there is no place short of Utopia without constant, frequent lawsuits, some serious, some frivolous. Neighbors battle in court against neighbors for decades over ridiculously small boundary disputes; disgrunted employees and employers carry their disagreements into courts every day; divorcing and ex-spouses ruin themselves and each other in the fight for the last word almost as often as they don’t. If, as several of the examples offered by Western suggest, he thinks the Roman Catholic Church is going to be nailed to a cross of LGBT litigation, I would suggest there’s another source of lawsuits that is rather obviously a bigger threat.
Westen does have an alternative argument against legalized same-sex marriage that’s not about the terrible martyrdom that awaits any dissenter against the Rainbow Fascist State. In a reductio ad absurdum of the hate the sin, love the sinner chestnut, he argues love for gay people compels not letting them get married:
[B]ecause same-sex relationships hurt everyone involved, marriage supporters have a duty to oppose inverted relationships out of love and compassion.
Despite being perhaps 4 percent of the U.S. population, the LGBT community sees devastating levels of HIV/AIDS, depression, anal cancer, suicide, shorter lifespans, and other ailments. Again, it is up to Christians, and especially our pastors, to energize society with the beautiful love of our faith. We never should have given up talking about sex [sic!], and we must start doing so anew.
As former Canadian LGBT leader Gens Hellquist said in 2006, “I am tired of watching my community die” of diseases endemic to the LGBT community. A Catholic with a master’s degree in psychology who visited a ward for HIV/AIDS patients in India, he saw it was clear that only monogamous, marital relationships are healthy for human beings.
So there you have it: we need to prevent people from getting married so as to force them into “monogamous, marital relationships.”
That’s the second biggest howler in Westen’s piece (or maybe the third, after the claim that conservative Christians don’t talk enough about sex!). The biggest is in the headline: “Same-Sex Marriage Won’t Bring Us Peace.” Nor will it bring us 4% GDP growth or a solution to the Israeli-Palestinian conflict. The idea is to bring us justice. But on second thought, there is a connection, or so thought Pope Paul VI, who famously said: “If you want peace, work for justice.”
By: Ed Kilgore, Contributing Editor, Political Animal Blog, The Washington Monthly, June 26, 2015
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