Gay Couples Nationwide Have A Right To Marry

A deeply divided Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live.

The court’s action rewarded years of legal work by same-sex marriage advocates and marked the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence.

Marriages began Friday in states that had previously thwarted the efforts of same-sex couples to wed, while some states continued to resist what they said was a judicial order that changed the traditional definition of marriage and sent the country into uncharted territory. As of the court’s decision Friday morning, there were 14 states where same-sex couples were not allowed to marry.

Justice Anthony M. Kennedy, who has written all of the court’s decisions recognizing and expanding gay rights, said the decision was based on the fundamental right to marry and the equality that must be afforded gay Americans.

“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented, and each wrote a separate opinion.

The common theme in their dissents was that judicial activism on the part of five members of the court had usurped a power that belongs to the people.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” wrote Roberts, who for the first time in his tenure marked his disagreement with a decision by reading part of his dissent from the bench.

“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. It had nothing to do with it,” he wrote.

Scalia called the decision a “threat to American democracy,” saying it robs citizens of “the freedom to govern themselves.”

In a statement in the White House Rose Garden, President Obama hailed the decision: “This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts. When all Americans are truly treated as equal, we are more free.”

It wasn’t until 2012 that Obama declared that same-sex couples should be able to marry, and it was only last year that he said he thought the Constitution provided such a right. But by Friday evening, the rainbow colors that gay rights activists have adopted were projected onto the north face of the White House. With the Supreme Court’s ruling, Obama said, “Today we can say in no uncertain terms that we have made our union a little more perfect.”

There were wild scenes of celebrations on the sidewalk outside the Supreme Court. Same-sex marriage supporters had arrived early, armed with signs and rainbow flags. They cheered at the announcement of a constitutional right for gay marriage, which did not legally exist anywhere in the world until the turn of this century. The first legally recognized same-sex marriages in the United States took place just 11 years ago, the result of a Massachusetts state supreme court decision.

Jim Obergefell, who became the face of the case, Obergefell v. Hodges, when he sought to put his name on his husband’s Ohio death certificate as the surviving spouse, said, “Today’s ruling from the Supreme Court affirms what millions across the country already know to be true in our hearts: that our love is equal.”

“It is my hope that the term gay marriage will soon be a thing of the past, that from this day forward it will be, simply, marriage,” he said.

But Austin R. Nimocks, senior counsel for the Alliance Defending Freedom, a group that supports traditional marriage, said: “Today, five lawyers took away the voices of more than 300 million Americans to continue to debate the most important social institution in the history of the world. . . . Nobody has the right to say that a mom or a woman or a dad or a man is irrelevant. There are differences that should be celebrated.”

The Supreme Court used cases from Michigan, Ohio, Kentucky and Tennessee, where restrictions against same-sex marriage were upheld by an appeals court last year, to find that the Constitution does not allow such prohibitions.

Kennedy over the past 20 years has written the Supreme Court’s most important gay rights cases: overturning criminal laws on homosexual conduct, protecting gays from discrimination and declaring that the federal government could not refuse to recognize same-sex marriages performed where they were legal.

He often employs a lofty, ­writing-for-history tone, and Friday’s decision was no different.

Referring to the couples who brought the cases before the court, Kennedy wrote: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

Kennedy did not respond directly to the court’s dissenters, but he addressed the argument that the court was creating a constitutional right. The right to marriage is fundamental, he said. The difference is society’s evolving view of gay people and their rights, he said.

“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” he wrote. “With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

As in previous decisions, Kennedy did not spell out how courts should scrutinize laws that treated gays differently. But Mary Bonauto, who argued the case for gay plaintiffs at the Supreme Court, said that message from Kennedy’s combined opinions “is one of inclusion: Stop making rules for gay people.”

Scalia was a sharp critic of Kennedy’s style, saying it was “as pretentious as its content is egotistic.”

“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,” Scalia wrote.

Roberts wrote a lengthy dissent that was a point-by-point takedown of the majority opinion. Gay activists had wondered whether the 60-year-old justice might take note of the increasing public support for same-sex marriage and find a way to join the majority on what they called the “right side of history.”

But he and the other dissenters said the question was not whether same-sex marriage was a good idea, but who should decide.

“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” Roberts wrote. “Just who do we think we are?”

Roberts rejected a comparison to Loving v. Virginia, in which the court struck down bans on interracial marriage. That did not change the age-old definition of marriage as between a man and a woman, he said. He raised concerns that the decision could lead to polygamous marriages — he mentioned a married threesome of lesbians called a “throuple.”

He noted that voters and legislators in only 11 states had authorized same-sex marriages, and said it was better for gay marriage to be adopted through the democratic process than by judicial order. He said religious leaders could take little comfort from the majority opinion that their beliefs would be respected.

That theme was picked up by Alito in his dissent. He said there could be “bitter and lasting wounds” from the decision and warned that the decision will be “exploited by those who are determined to stamp out every vestige of dissent.”

The questions raised in the cases decided Friday were left unanswered in 2013, when the justices last confronted the issue of same-sex marriage. A slim majority of the court said at the time that a key portion of the Defense of Marriage Act — withholding the federal government’s recognition of same-sex marriages — was unconstitutional. In a separate case that year, the court said procedural issues kept it from answering the constitutional question in a case from California but allowed same-sex marriages to resume in that state.

Since then, courts across the nation — with the notable exception of the Cincinnati-based federal appeals court that left intact the restrictions in the four states at issue — have struck down a string of state prohibitions on same-sex marriage, many of them passed by voters in referendums. –Washington Post

Supreme Court Opinion-click here.

No, 'Good Intentions' Don't Give You A License To Censor Speech

The Supreme Court issued a momentous First Amendment decision. In Reed v. Town of Gilbert, Arizona, a unanimous Court invalidated a town sign code that subjected certain signs to harsher restrictions than others, depending upon what messages they conveyed. In doing so, it made plain that such "content-based" restrictions on speech are presumptively unconstitutional and must undergo strict judicial scrutiny.

The facts: The town of Gilbert has a sign code that restricts the size, duration and location of temporary signs. Under the sign code, the Good News Community Church's temporary signs promoting church services are subjected to far greater restrictions than temporary signs promoting political, ideological and various other messages. That is, the sign code facially discriminates on the basis of the content of the messages communicated by the signs.

The First Amendment broadly prohibits the enactment of any law "abridging the freedom of speech." It makes no exception for certain messages, ideas or subject matter, nor does it insulate legislation enacted with supposedly benevolent intentions. The Supreme Court has properly recognized the danger presented by laws that regulate speech based on its communicative content, holding that they are presumptively unconstitutional unless the government demonstrates, with reliable evidence, that they are narrowly tailored to compelling government interests.

But lower courts have held that laws that facially discriminate based on content are not necessarily content-based -- not only when evaluating sign codes, but also when evaluating restrictions on other forms of speech, such as occupational-speech licensing, panhandling bans and noise ordinances. In the decision below, the Ninth Circuit determined that Gilbert's sign code was "content-neutral" because of the town's assurances that it had no intention to discriminate. The Institute for Justice filed an amicus brief urging the Court to clarify that facially content-based statutes should not be given a pass because officials (allegedly) mean well.

In Reed, the Court squarely held that strict scrutiny applies either when a law is content-based on its face or if its purpose and justification are content-based -- and courts must inquire into each question. Writing for the Court, Justice Thomas explained, "A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of 'animus' toward the ideas contained in the regulated speech." The Court easily determined that the sign code at issue classified signs on the basis of their content -- the restrictions applied to any given sign "depend entirely on the communicative content of the sign."

Of course, that did not end the analysis. The sign code could have passed constitutional muster if the town had been able to demonstrate that it furthered a compelling government interest and was narrowly tailored to that interest. The town was unable to do so -- and it wasn't even close. The town baldly asserted that the sign code furthered the ends of "preserving the Town's aesthetic appeal" and "traffic safety," despite "allowing unlimited numbers of other types of signs that create the same problem[s]" and without providing any reliable evidence that "directional signs pose a greater threat to safety than do ideological or political signs." The underinclusiveness of the sign code rendered the government's assertions completely implausible.

In rejecting the notion that the statement of a benign end is enough to insulate speech regulations from exacting judicial scrutiny, the Court cited NAACP v. Button (1963), a case involving a state's attempt to use a statute prohibiting "improper solicitation" to curtail the NAACP's advocacy of desegregation. In that case, the Court rejected Alabama's claim that its stated interest in the "regulation of professional conduct" was sufficient for the ordinance to pass muster. The Court articulated a broad principle: "[I]t is no answer... to say... that the purpose of... regulation [is] merely to ensure high professional standards and not to curtail free expression." That principle was affirmed today. The government should never be able to escape the burden of demonstrating the legitimacy of its ends with reliable evidence when it restricts our liberty. In Reed, the Court made clear that such judicial engagement is required to ensure that the government does not act as a censor. –Huffington Post

Supreme Court Denies Gay Marriage Appeals

The Supreme Court made history Monday [10/06/14] , with a nondecision that effectively moved the country much closer to the day when legal gay marriage is the law of the land.

In a move that surprised but delighted gay marriage activists, the high court declined to take up appeals from five states that ban gay marriage, paving the way for same-sex unions to immediately begin in those states, plus as many as six more states by the end of the year.

The high court’s decision, issued without comment, meant the rulings in the three lower federal appeals circuits striking down bans on gay marriage in Virginia, Utah, Wisconsin, Indiana and Oklahoma are now binding law.

Clerks in those five states issued marriage licenses or conducted marriages on Monday. Clerks in Colorado, one of six other affected states in the federal circuits, also began issuing marriage licenses to same-sex couples.

Gay rights lawyers, eager to expand their victories, began pressing for court action in Kansas, North Carolina and West Virginia, and predicted that, in effect, the Supreme Court’s first day in session may have brought to 30 the number of states with gay marriage.

The justices stopped short of accepting the cases, with the possibility of settling once and for all whether the Constitution guaranteed a right to marriage for gay Americans. Officials in states that still maintain bans on same-sex marriage vowed to continue the fight.

A minimum of four justices is required for the Supreme Court to grant the so-called writ of certiorari to hear the case. Monday’s action means that at least one of the four members of the high court’s more conservative bloc voted not to put the cases on the court’s current docket.

“It’s an incredible day; it’s historic, and I am ecstatic,” Jon Davidson, legal director at Lambda Legal, told a media briefing Monday.

Virginia plaintiff Carol Schall said that reading a Twitter message Monday reading “Cert denied, marriage legal” left her in a “puddle of tears.”

“Our long journey has ended in such joy and such happiness,” said Ms. Schall, who sued for the right to have her California marriage to Mary Townley recognized in Virginia.

Stunned traditional values groups expressed “deep disappointment” that the Supreme Court didn’t weigh in on the landmark social issue and instead let stand “rogue” rulings by judges who cannot be held accountable by the public. The high court in June 2013 had appeared to signal it was willing to let the individual states decide at their own pace whether and when to sanction gay marriage.

“The entire idea that marriage can be redefined from the bench is illegitimate. Marriage is the union of one man and one woman; it has been this throughout the history of civilization and will remain this no matter what unelected judges say,” said Brian S. Brown, president of the National Organization for Marriage (NOM).

NOM and the Family Research Council called for Congress to pass laws to protect states’ rights to define marriage or pass a constitutional amendment defining marriage in the traditional sense.

“This is an unfortunate setback for sound constitutional self-government and a setback for a healthy marriage culture,” said Ryan T. Anderson, Heritage Foundation fellow in religion and free society. “Declining to review these cases does not speak one way or the other to the merits of the cases,” he said. “But it does leave in place bad rulings from the lower courts.”

Theodore B. Olson, co-counsel for the Virginia gay couple and part of the legal team for American Foundation for Equal Rights, savored the day’s events as “extraordinarily exciting.”

“This is a momentous victory for the constitutional promise of equality, dignity and justice for all Americans,” said Mr. Olson. “With the commonwealth’s discriminatory marriage ban finally and conclusively struck down, we are one giant step closer to the day that all Americans, not just Virginians, can enjoy their right to marriage equality under the law.”

Virginia Democratic Attorney General Mark Herring, who declined to defend the state’s ban in court, reacted swiftly, ensuring that Virginia would hold the first gay marriages just hours after the court’s decision became public.

Reaction in red states

Even some Republican governors in red states appeared ready to give up the legal battle, which has gone strongly in favor of gay marriage supporters in recent months.

Indiana’s Republican Gov. Mike Pence reaffirmed his commitment to traditional marriage but said Indiana would follow the law.

Wisconsin Gov. Scott Walker, a Republican who is up for re-election, said the fight against same-sex marriage “is over” in Wisconsin. “It is clear that the position of the court of appeals at the federal level is the law of the land, and we’re going to go forward enacting it,” he said, according to The Associated Press.

“I believe states should have the right to determine their own laws regarding marriage. That said, we are a society of laws, and we will uphold the law,” said Utah Gov. Gary Herbert, adding he had informed state officials to recognize all legally performed marriages, including those for same-sex couples.

Utah Attorney General Sean Reyes said his office would be reviewing the case, Kitchen v. Herbert, to seek clarity on issues pertaining to marriage recognition and adoption. “It’s time for people of good will on both sides of the issue to come together now and heal any rifts. We are all Utahans,” Mr. Reyes said.

But in Oklahoma, a combative Gov. Mary Fallin recalled that her state’s 2004 amendment, which says only unions of one man and one woman are valid, was passed by a 3-to-1 margin by voters in 2004.

“The people of Oklahoma have the right to determine how marriage is defined,” the Republican governor said, but now the will of the people has been “overridden by unelected federal justices, accountable to no one.”

“Today’s decision has been cast by the media as a victory for gay rights,” Ms. Fallin said. “What has been ignored, however, is the right of Oklahomans — and Americans in every state — to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of-control federal government that wants to substitute Oklahoma values with Washington, D.C., values.”

In three affected states, gay marriage was up in the air or on hold.

In South Carolina, Attorney General Alan Wilson said his office will keep fighting to uphold the state’s constitutional ban on gay marriage until there is a ruling in that state’s case.

An attorney for the same-sex couple who married in the District and want to legalize gay marriage in South Carolina said she will file a request for an immediate court ruling in their favor, WYFF-Channel 4 in Greenville, South Carolina, reported. In West Virginia, state officials said they were weighing their options, while in Wyoming, a gay marriage lawsuit has a December court date.

In Virginia, conservative GOP Del. Bob Marshall harshly decried the turn of events.

“By failing to gain the support of four justices to hear the appeal of Virginia’s marriage case, the Supreme Court has placed the government of the commonwealth in the hands of two federal judges whose very names are unknown to ‘We the people,’” he said.

“This is a total dereliction of duty,” said Mat Staver, founder and chairman of Liberty Counsel. “Everyone will be affected by same-sex marriage because it is an intolerant agenda that will directly collide with religious freedom,” Mr. Staver said.

Churches and religious organizations in the new states affected by gay marriage should “seek all kinds of legal review” of their bylaws and articles of incorporation, Bruce Hausknecht, judicial analyst for Focus on the Family, told a Citizen Link interview. That’s because they could run into trouble with public accommodation and other laws that forbid discrimination, Mr. Hausknecht said.

Rulings on gay marriage from the 6th and 9th Circuit Courts of Appeals are expected soon. –Washington Times

The Roberts Court’s Brief Progressive Moment

It’s hard enough to know what the Justices of the Supreme Court are talking about when they write opinions, which tend to be dense, convoluted, and laden with coded references that are decipherable only to a few. But, on Monday, the Court presented an even greater interpretive challenge: determining what it meant when it said nothing at all. Without comment, the Court let stand successful challenges to the bans on same-sex marriage in five states. Those lower-court rulings had been stayed while the parties waited to hear from the Justices. Now that they won’t be saying anything, same-sex weddings can go forward in those states and, soon, in others in their circuits. Clerks in Utah and Virginia were already issuing marriage licenses on Monday afternoon.

What was behind the Court’s action? Several theories make sense. The conservatives wanted to kick the can down the road until President Ted Cruz could replace Justice Ruth Bader Ginsburg. The liberals wanted to kick the can down the road until same-sex marriage was boring and routine in most of the country. Chief Justice John Roberts didn’t want to be on the wrong side of history but couldn’t bring himself to vote with the liberals. Justice Ginsburg didn’t want to repeat the trauma of Roe v. Wade and let the Court get too far in front of the country. All are plausible.

Ultimately, at the Supreme Court, what matters is the result, not the motives. So, because of Monday’s non-decision decision, gay people in thirty states, representing well more than half the country, will now enjoy the right to marry. A decade ago, marriage equality existed only in Massachusetts. It is a remarkable legal and social transformation—an astonishing victory for progressive legal thought and action.

On the occasion of this extraordinary victory, which happens also to be on the first Monday in October, it’s worth looking at the rest of the Supreme Court’s term, in which the prospects for progressive victories look slim indeed.

The great project of the Roberts Court seems, at this point, to be the dismantling of the civil-rights revolution in law. Roberts has a visceral distaste for the sorts of race-based preferences reflected in affirmative action in education or employment. He is joined in this view by Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and (in most cases) Anthony Kennedy. The conservative quintet will have the chance to demolish the concept of “disparate impact” (the idea that discriminatory action can be proved by statistical means) in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

Voting rights are also a major target of the Roberts Court, and the conservative majority will have two chances this term to limit what’s left of the Voting Rights Act: African-American voters in Alabama are challenging a gerrymander that compressed black voting power in the state into a handful of districts, and the conservative Arizona State Legislature is contesting the constitutionality of an independent redistricting commission.

As this year’s midterm elections approach, the Court is sure to hear more challenges to the voter-suppression initiatives that were passed by some of the states that came under Republican control following the 2010 elections. So far, the Court has rubber-stamped all the initiatives to have come before it, and there is every reason to believe that this pattern will continue.

It is a day to note and to celebrate a civil-rights revolution that is nearing a complete victory. But it is also a moment when other progressive causes are losing ground in the Supreme Court. On race and voting rights, the Roberts Court’s likely direction is all too clear. –New Yorker

Supreme Court Homosexual Marriage Decision Is Unconstitutional

By allowing the usurpations of lower courts to overrule the states, the Supreme Court homosexual marriage decision imposes an impossible interpretation of the Fourteenth Amendment.

When Courts overrule the overwhelming will of the People we should be afraid. Even if the current decision is one you like, when the Law is Lawless, all it takes is a change in who is sitting in the seat of power to turn the tables once again.

The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible.

By refusing to rule if the states can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.

This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the people, to define marriage consistent with the values and mores of their citizens.  Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.

The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word–an action that is likely to have far-reaching consequences. Because of the Court’s decision today, 11 states will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.

Thirty-one states have voted, and they all determined to protect marriage. Every single one of them. It is the height of arrogance and short-sightedness for judges to treat those votes as if they don’t mean anything.

The Rule of Law protects everyone, and when it is abandoned no one is safe. –Political Outcast

Supreme Court To South Carolina: Drop Dead

The justices don’t care what voters think. Is that democracy?

There is little more profoundly American than the concept that we are a nation of duly enacted, just laws. Monday’s Supreme Court decision not to hear cases regarding so-called same-sex marriage, however, turns this concept on its head in two ways. First, the decision undermined the fundamental basis of a democracy—that laws reflect the will of the majority. Secondly, today’s ruling robbed parties and states of their day in court.

The Supreme Court’s actions involved cases from Utah, Oklahoma, Wisconsin, Indiana and Virginia. Each state had on the books a constitutional amendment that defined marriage as exclusively between one man and one woman. Same-sex couples living in each of these states and wishing to marry brought legal challenges, arguing that such strictures violate their constitutional rights to equal protection under the law. The plaintiffs also based their claims on several prior Supreme Court decisions, including one from last term that struck down a provision of the Defense of Marriage Act and another—1967’s Loving v. Virginia—in which the justices invalidated a Virginia law that prevented blacks and whites from marrying.

The plaintiffs first brought their challenges in federal trial courts in their own states, and prevailed. Had the litigation stopped there, those rulings would only be binding within each state. But that wasn’t the end. Each trial court ruling was then appealed to the next rung of federal appeals courts by state officials tasked with defending state laws.

The United States is partitioned into 13 different federal circuit courts of appeal, with jurisdiction over specific geographic areas. So, for example, the challenge to Virginia’s one man-one woman law amendment was heard by a federal appeals court with jurisdiction over not only Virginia, but also Maryland, West Virginia and North and South Carolina. What the appeals court decides becomes the law of the land in every state within the circuit.

In each case, the courts of appeals struck down these marriage amendments. By declining to wade into the matter and ultimately decide the issue, the Supreme Court left these rulings intact. And this means that Colorado, Wyoming, Kansas, West Virginia and North and South Carolina—all of which have marriage amendments, but were not parties to this particular litigation—will now be forced to live under the rulings.

This is wrong as a matter of law and morality, and it represents an affront to democracy. These marriage amendments reflect the definition of marriage that has been in place for thousands of years and sought to prevent the redefinition of marriage to include same-sex unions. In each state, the marriage amendments were passed by the vast majority of the states’ voters, and the laws were struck down by unelected federal judges. The voice of the majority was silenced by appointed judges who hold lifetime appointments.

Most of those states are involved in cases to defend traditional marriage in either the district court or appellate level. Those states, however, will never have the opportunity to defend and justify their duly enacted laws before the Supreme Court’s nine justices, even though their marriage amendments passed by large majorities: 70 percent in Kansas and 78 percent in South Carolina, for instance. But the Supreme Court effectively took the decision out of the voters’ hands.

Although Monday’s decision effectively strikes down marriage amendments defining marriage, it is not a clear victory for those fighting against the will of the majority. In fact, neither side of the issue can declare victory yet. We are currently awaiting decisions from the Cincinnati-based federal appeals court and the New Orleans-based court of appeals. Those cases are still viable, and the Supreme Court could still decide to take up a case on this issue. Those present during oral argument in the Sixth Circuit are hopeful that that the panel of judges who heard the case will continue to allow states to define marriage for themselves, instead of adopting one federal definition. But until then, if you are among the 78 percent of voters in South Carolina who do not want marriage to be redefined and seek the preservation of the natural family, it is a bad day to be a South Carolinian. Not only is the voice of the vast majority from your state not being heard, but you will not have a chance to litigate your arguments before the highest court. The Supreme Court has silenced your voice. –Politico

SCOTUS In Review: Justice If You’re Rich, Powerful, Or A Christian

In an interview in 2007, just after completing his first term as Chief Justice of the Supreme Court, John Roberts expressed his desire to reduce the “personalization of judicial politics” and to create a court that works as one. He wanted to emulate the courts of SCOTUS past where the Chief Justice guided the Court with an even hand. Most importantly, he wanted a court of consensus.

Eight years later, Chief Justice Roberts’ dream remains unrealized.

The most recent Supreme Court term has revealed an increasing divide within the usually tight-lipped court. Even when there has been unanimity in rulings, separate opinions have often been issued where a justice would concur in general, but emphasize their disagreement with some underlying principle. The idea of separate opinions was one of the things that Chief Justice Roberts wanted to avoid. Obviously, that plan did not work.

Looking over the past term, and from politics to religion to women’s rights, the Roberts Court has repeatedly sought to increase the rights of those who wish to oppress others. Their rulings have interpreted the Constitution in ways that seem to be moving our nation further away from a “justice for all” mantra to one that favors the rich, the powerful, and the male. Justice for me but not for thee, indeed.

For example, this term the Court allowed individuals to fund unlimited amounts of candidates and political organizations. They also said that a group that was accused of lying during a campaign could challenge a law that makes it illegal to make false statements in ads during campaigns. In addition, the Court limited the power of presidential recess appointments to when Congress was not in session for 10 days or more. Interestingly, discord was obvious in that unanimous decision when Justice Scalia, writing for the majority, wrote that the Court had expanded a “narrow tool” into a far reaching “weapon” for the president.

In terms of civil rights, it’s been a mixed bag. The Court ruled that voters are allowed to stop public universities from having affirmative action programs in Michigan. However, there were some bright spots, such as the unanimous ruling that police need a warrant before searching a suspect’s cell phone. The Court also put further limits on the death penalty by striking down arbitrary legislative determinations of when a person is deemed mentally ill. This decision was not unanimous though, as the most conservative members of the court dissented, saying the majority had left doctors and psychiatrists in charge of determining constitutional law. In essence they seem to feel that the states, not science, should determine who is mentally ill.

Speaking of science, the Court’s distaste for science was also evident in their ruling in the controversial Hobby Lobby case.  The Court ruled that Hobby Lobby did not have to provide birth control coverage in its insurance policies because of the owners’ deeply held religious beliefs. Those “beliefs” said that scientifically proven and safe birth control methods such as the IUD or emergency contraception are “abortifacients.” The Court bought into the notion that hormonal birth control prevents fertilized eggs from implanting and that this is just like an abortion. Aside from the fact that none of this is true, the Court ruled that simply because the owners of a for-profit company believed it, they didn’t have to pay for coverage for their female employees.

Of course, if those women need to have an abortion, they will also be forced to listen to the “counseling” outside reproductive health clinics since the Court ruled (unanimously) that buffer zones targeting anti-choice advocates violate free speech rights.

The majority in the Hobby Lobby decision were all male and all Catholic, and it was that same majority that ruled in another religious test case. In Town of Greece v Galloway, the court stated that a Christian prayer referencing a deity during a public meeting did not violate the First Amendment Rights of non-Christians. While legislative prayer has long been upheld, it has generally been accepted that public meetings should avoid any semblance of endorsing a particular religion. In this case, the majority said if the non-Christians don’t like it, they can just leave–perhaps that’s what the Court thinks women who work for Hobby Lobby should do as well?

The dissenting justices in both cases included all three women, one of whom is a non-practicing Catholic. They pointed out how out of touch with reality the majority justices appear. In general, the dissenting justices pointed out the slippery slope of letting religious beliefs trump secular laws and how it could lead to coercion, even oppression, of those who do not share those beliefs. That seems to already be manifesting.

The day after the Hobby Lobby ruling, a religious college was also given an exemption from the ACA birth control mandate. There are now several organizations asking for religious exemptions so they can refuse to hire LGBT employees. Mississippi has already said that businesses don’t have to serve certain people if it violates their beliefs (like gay people).

With all this the Roberts Court is sending a clear message: that for those that do not share the values of the rich, powerful, Christian (and probably white) male, justice in the United States is probably not for you.

The Supreme Court has long made rulings that have changed the course of our nation.  Some for the worse, such as the 1857 Dred Scott decision which ruled that slavery was constitutional and people of color could not be U.S. Citizens. It would take a civil war and a constitutional amendment to override that ruling. How far will we have to go before we can reverse the course set by this Court? -Care2

SCOTUS Rules Against Warrantless Cellphone Searches

The U.S. Supreme Court ruled in favor of Americans and the 4th Amendment yesterday in a unanimous decision that prevents police from snooping into people’s cellphones without a warrant.

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” wrote Chief Justice John G. Roberts Jr. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

The justices equated the information contained in cellphones to millions of pages to documents and police searches of cellphones to ransacking a person’s home in an effort to uncover everything that might incriminate him.

Of course, Supreme Court decisions are often ignored by the police, who continue to harass, intimidate, assault and arrest people for taking video of police actions despite a Supreme Court ruling that the activity is lawful. So it’s best to keep your cellphone password-locked to prevent an unlawful search during a police encounter.

While this is certainly a victory for privacy rights, it does little more than give the National Security Agency a monopoly on snooping into the electronic data and communications of the people. Unless and until government snooping organizations — NSA, FBI, CIA, etc. — are hamstrung by court decisions, we should all assume our electronic communications are not private.

Note from the Editor: Under the Obama Administration, the NSA, the IRS, and the State and Justice departments are blatantly stepping on Americans’ privacy—and these are just the breaches we’re aware of. I’ve arranged for readers to get a free copy of The Ultimate Privacy Guide so you can be protected from any form of surveillance by anyone—government, corporate or criminal. –Personal Liberty

Here Is the Supreme Court's Decision In The Hobby Lobby Contraception Case

On Monday, the Supreme Court issued a decision in Sebelius v. Hobby Lobby Stores, Inc. The court ruled that most companies do not have to cover contraception for their employees if the company has a religious objection to doing so. Here is the decision.

Supreme Court Defends Wealthy’s Right To Own Government

By a five-to-four decision, the United States Supreme Court today defended the right of the wealthiest Americans to own the United States government.

Writing for the majority, Chief Justice John Roberts summarized the rationale behind the Court’s decision: “In recent years, this Court has done its level best to remove any barriers preventing the wealthiest in our nation from owning our government outright. And while the few barriers that remained were flimsy at best, it was high time that they be shredded as well.”

Citing the United States Constitution, Justice Roberts wrote, “Our founding fathers created the most magnificent democracy in human history. Now, thanks to this decision, the dream of owning that democracy is a reality.”

Justice Antonin Scalia also weighed in, telling reporters at the Court, “After all the pro-gay decisions we’ve been making around here lately, it was nice to finally have a win for the good guys.” -The New Yorker

Originalists Making It Up Again: McCutcheon And ‘Corruption’

The Supreme Court decision ending aggregate limits on political donations was made possible by a dangerous, narrow definition of "corruption" the Framers themselves wouldn't recognize.

At the core of the disaster that is the Supreme Court’s McCutcheon v. FEC decision lies a mistake. A strategic mistake, made by the government. In this mistake, we can see all that’s wrong with modern American constitutional law.

From the first moment that this case arose, it has been obvious to everyone that the decision would turn on the meaning of the word “corruption.” Congress has the power to regulate campaign contributions only if it is doing so to regulate “corruption.” So the central question raised by McCutcheon was this: Is a law limiting aggregate contributions a law designed to limit “corruption?”

The answer to that question obviously turns on the meaning of the word. If “corruption” means just quid pro quo—the stuff regulated by bribery laws—then it was clear to everyone that it would be tough going for the government to defend aggregate limits.

The reason was pretty obvious. The Court has upheld limits on individual contributions to avoid quid pro quo corruption or the “appearance of corruption.” But the Court has also said that those individual limits can’t be set too low, or else the limit would have no connection to corruption or the “appearance of corruption.” So a contribution limit of $500, for example, would plainly fail the Court’s quid pro quo rationale, since none would think that a contribution of $500 bespeaks quid pro quo corruption.

So what if someone wanted to give $500 to every Democratic candidate running for Congress?

Under the law at issue in McCutcheon, that would not be allowed. $500 given to more than 400 candidates would exceed the limits for aggregate contributions. And thus the crux of the argument Mr. McCutcheon’s lawyers made to the Supreme Court: If it’s not quid pro quo corruption when $500 is given to one candidate, how is it quid pro quo corruption when $500 is given to 400+ candidates?

 The answer, obviously, was that it isn’t unless corruption can mean something other than quid pro quo corruption. The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos.

The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution  to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

So how is that framing usage relevant to the decision in McCutcheon?

The justices on the Court leading the charge to restrict the meaning of “corruption” to quid pro quo corruption alone are the conservatives. Those same conservatives—Justice Scalia and Justice Thomas most prominently, but Chief Justice Roberts as well—are also the justices who have told us again and again that the method they use to interpret the constitution is “originalism.” Read the Constitution, they have told us, not how we would read it, but how the Framers would have read it. That’s the only “principled,” as we’ve been lectured again and again, way to interpret the document. And on the basis of that method, the Court has struck down acts of Congress repeatedly, and likewise, upheld acts of Congress repeatedly. If the Framers would have done it, an originalist argues, then we should too.

But where is the originalism when it comes to the meaning of the word “corruption?” If the originalists on the Court believe the Framers would have permitted laws regulating the freedom of speech if those laws targeted “corruption,” why would an originalist use an understanding of the term from a 1976 per curiam opinion (Buckley v. Valeo) rather than an understanding of the Framers—corruption as in “improper dependence”—made manifest by the Framers again and again?

Because “improper dependence” is precisely the problem that limits on aggregate contributions are meant to attack. Already we have a system in which Congress is dependent upon the tiniest fraction of the 1% to fund its campaigns. I’ve estimated the number of relevant funders is no more than 150,000 (about the number of Americans named “Lester.”) If aggregate contribution limits are struck, that number will fall dramatically. More will be raised from a smaller number of contributors—maybe as few as 40,000 (about the number of Americans named “Sheldon”). So abolishing aggregate limits will move us from Lesterland to Sheldon City, increasing a dependence on the funders, while conflicting with Madison’s promise of a branch of government “dependent on the people alone.”

That argument may or may not have worked with one of the five conservatives on the Court. There’s no such thing as a slam dunk in law, and this argument depends upon originalism applied not to the Constitution’s text, but to the standard the Court uses to interpret that text.

But the striking fact about McCutcheon is that the government didn’t even try. Originalism is not the language of liberals. It’s beneath them—the weapon of the enemy. So the government’s brief didn’t even hint at the argument that there was no good originalist reason to restrict the meaning of “corruption” to quid pro quo corruption alone. And Justice Breyer in his classically geeky dissent doesn’t even hint at the possible originalist inconsistency—even though the core of his argument is precisely that “corruption” does not mean “quid pro quo corruption” alone.

This is the much bigger pathology that the partisans on the Court have allowed to evolve. Originalism is a method for interpreting our Constitution. It yields conservative results. It yields liberal results. But the most vocal originalists in modern times have been conservatives. And through a carelessness in the application of their own theory, they have allowed the world to believe that originalism is a tool exclusive to the Right.

The liberals have allowed that belief to emerge by acquiescing in conservative inconsistency. So exhausted have they become with the arguments of the other side that they don’t even want to engage.

This is a loss for all of us. Not necessarily because originalism is the theory we all should embrace. But because by giving originalist inconsistency a free ride, the Left has made more likely a whole series of terrible constitutional decisions. McCutcheon is just the latest. –The Daily Beast