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Primer: Ten things you need to know about the US Supreme Court “gay marriage” case being heard April 28, 2015
POSTED: April 24, 2015 UPDATED April 26, 2015
On April 28 the US Supreme Court case will hear oral arguments for the case that will essentially decide whether “gay marriage” is a previously unknown “fundamental right” enshrined in the US Constitution, similar to the Court’s 1973 abortion ruling.
What was once a fringe, unthinkable idea is now on the verge of being imposed on the entire nation.
What is happening? Here are ten things to know about this case:
1. How we got to this point
The popular sentiment against “gay marriage” in the United States has been overwhelmingly one-sided at the ballot box. Since 1998, 30 states have passed constitutional amendments banning it. Some of these amendments were passed by huge margins (as high as 80%). This appeared to everyone to be an insurmountable obstacle to the “gay marriage” movement.
After losing in state after state, the homosexual movement realized that it could never overturn these amendments legitimately. In very blue states, using massive amounts of money, they were able to successfully lobby legislatures and sway elections. But the amendments across the country were a problem.
So they decided to focus on perfecting the strategy that worked in Massachusetts in 2003: using the courts and hand-picked activist judges, along with very shrewd manipulation of the legal process and well-funded legal teams and political strategists. They crafted a plan to get the state amendments declared unconstitutional.
This strategy took advantage of the LGBT lobby’s well-funded propaganda push over the last few decades in law schools, law firms, and judicial chambers, as well as a fresh new generation of radical federal judges appointed by Barack Obama.
Starting with California in 2009, where a homosexual judge overturned the Proposition 8 vote, they soon picked up momentum. Across the country, the various cases began sailing through the state and federal courts largely unimpeded. It was quite frightening for all of us to watch.
Other factors helped keep it going. The almost universal unwillingness of the legal teams on the pro-family side to aggressively confront the other side’s arguments gave them a free pass on what could have been difficult issues to overcome. And a number of pro-gay “marriage” Democrat (and RINO Republican) Governors and Attorneys-General simply refused to properly defend the cases and/or appeal them after losing.
Using both state and federal courts, the LGBT lobby has now gotten activist courts to “overturn” 26 of the 30 state constitutional amendments. (Some of these cases are still being appealed.)
But on November 6, 2014, their string of successes hit a snag, as the Sixth Circuit Court of Appeals ruled in favor of the Ohio constitutional amendment. However, since this disagreed with the other Federal District Court rulings, it bumped the case up to the Supreme Court, which agreed to hear it and make a broad decision.
2. How the 14th Amendment is used to push the radical agenda in the courts
In all these cases (as in countless other “progressive” legal challenges over the years) the radicals have used twisted interpretations of the US Constitution’s Fourteenth Amendment to advance their agenda through the courts.
The Fourteenth Amendment says:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The “due process” and the “equal protection” clauses are the hammers used to smash the existing laws and constitutional amendments. Along with that, the LGBT lawyers start with the assumption (which our side could easily refute, but doesn't) that “sexual orientation” constitutes a class of citizen (based on an immutable characteristic, etc).
Regarding the “equal protection” argument: They argue that “gays” are not allowed to marry the ones they love, but heterosexuals are. They say that “gays” are thus “demeaned,” made “second class citizens,” and kept “unequal” – and this causes them terrible harm.
They further argue that not recognizing “gay marriages” from other states is a violation of due process because of the Constitution’s “full faith and credit” clause.
Of course, this is all legal nonsense. The answer to their “equal protection” argument is simple: Under the law, every person can only marry someone of the opposite sex. The marriage laws apply to every person equally. No legal expert we’ve consulted has disagreed with us on that reasoning. And everyone gets the same “due process” under it. Unfortunately, to our knowledge these points are rarely used to buttress our side’s argument.
Furthermore, the “full faith and credit” clause was never meant to be used to alter the meaning of the word marriage (i.e., plural marriages, incestuous marriages, marriages to young children), but only the application to a marriage case (or a divorce, etc.,) where the meaning of the word marriage was commonly agreed upon. It’s pretty simple – unless you’re an activist judge.
3. What this case is specifically meant to decide
The case is officially named Obergefell v. Hodges, which is a consolidation of four “gay marriage” cases previously brought before the Sixth Circuit.
According to the court documents, this case addresses only two specific questions:
On April 28, a total of 90 minutes is allotted for oral argument on question #1, and a total of 60 minutes is allotted for oral argument on question #2. As discussed above, in any normal circumstance this would be a no-brainer.
Not surprisingly, there have been dozens of amicus briefs filed for this case. (You can read them here.) Most of those filed by our side discuss the importance of marriage in society, the historical roots of marriage, how imposing “gay marriage” would divide the country, children needing a father and a mother, etc. None that we’ve seen actually addresses the two questions regarding the Fourteenth Amendment which this case is about. We can only surmise that people are assuming that the Justices are not actually focusing on strict constitutional law but on these unrelated issues.
4. The lawyers arguing this case on April 28
The competition to represent the pro-family side was definitely not as intense as for the “gay marriage side.”
Arguing for the pro-family side: Eric E. Murphy is the current Ohio State Solicitor, who won the appeal before the Sixth Circuit after losing in District Court. John J. Bursch was Michigan State Solicitor from 2011-2013 and has argued eight times before the US Supreme Court. According to news reports, Bursch’s current firm, Warner Norcross & Judd, supports “gay marriage” and has refused to be involved in this case to help him, so he is working independently.
Both attorneys have a good reputation for competence.
Arguing for the homosexual “marriage” side: Alphonse A. Gerhardstein is a prominent civil rights attorney from Cincinnati. Mary Bonauto is the celebrity lesbian attorney for Gay and Lesbian Advocates and Defenders, who won the original Goodridge “gay marriage” case in Massachusetts in 2003. We at MassResistance know Bonauto well. She argued the lawsuit against us (unsuccessfully) in the infamous “Fistgate” case, and we have debated her on television.
We don’t know much about Gerhardstein. In our opinion, Bonauto is not particularly impressive.
(Contact information is from Supreme Court filings.)
5. Anticipated problems with our side’s arguments
The other side’s arguments rarely bother dealing with the strict constitutional meaning of the text in question. They are almost exclusively based on the assumption that “sexual orientation” constitutes a legitimate legal “class” of people who are “born that way,” and as such have innate rights as a “class.” The concept of a “class” of people is foreign to the text of the Constitution. But it has nevertheless been accepted by courts for decades and undoubtedly by a number of the Supreme Court Justices.
That concept must be vigorously confronted and debunked. Unfortunately, our lawyers have been afraid to do that. Instead they concede to it and attempt to make a persuasive argument within those absurd boundaries — i.e., every child needs a mother and father, marriage is an institution for procreation, etc. This strategy almost always fails.
Why does our side avoid a strong argument? The answer falls into two categories:
It’s about time to quit doing what doesn’t work. Our fear, unfortunately, is that the lawyers on our side have been working closely with pro-family establishment lawyers in Washington DC (and we all know who they are) who are anything but aggressive or confrontational on these issues.
6. When the Court will issue a decision
The Court will issue its ruling before its current term ends in late June – i.e., within two months.
7. Why Justices Ginsburg and Kagan must legally recuse themselves from this case
Federal law 28 U.S. Code § 455 states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
In the past year Justices Ruth Bader Ginsburg and Elena Kagan have performed same-sex “weddings.” Ginsburg told people that the acceptance of same-sex “marriage” reflects “the genius of our Constitution.” Ginsburg also told Bloomberg Business News that she thinks Americans are ready for gay marriage.
Kagan’s aggressive advocacy for LGBT “rights” goes back to her years as Dean of Harvard Law School (2003-2009), and is thoroughly documented in our MassResistance report.
Ginsburg and Kagan are unquestionably biased on this issue and by law must disqualify themselves from this case. Failure to do would call into question the legitimacy of the (feared) ruling on this case, at the very least. Furthermore, a near-universal interpretation of the Fourteenth Amendment’s “due process” clause (above) includes the right of impartial court proceedings. Having biased judges violates that.
Motion for Recusal. We have been informed that Attorney Andy Schlafly (son of Phyllis Schlafly) has drafted a Motion for Recusal, under section 28 USC 144, which will be filed by one of the state Attorneys-Generals in Ohio, Tennessee, Michigan or Kentucky who have standing in the case. According to Mr. Schlafly, “This will be the first time in the history of our country that a Motion for Recusal will have been filed against U.S. Supreme Court Justices because the above codes are for Federal District Judges, yet the principle of recusal can be expanded to all federal judges including Justices of the U.S. Supreme Court.”
8. Bill filed in Congress to remove the Court’s jurisdiction on marriage
It is possible for Congress to restrict the Federal Courts from hearing certain types of cases.
Article III, Section 2 of the US Constitution gives Congress the ability to restrict the jurisdiction of the Supreme Court and federal courts:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In the case of marriage, this probably should have been done at least a decade ago.
However, this past week, some action was started. In both houses of Congress, bills were filed to block the federal courts, including the US Supreme Court, from hearing or deciding cases involving the definition of marriage.
In the US House, Rep. Steve King, (R-Iowa) filed bill, H.R. 1968, titled Restrain the Judges on Marriage Act of 2015. (See text of bill here.) As Rep. King describes on his website, “This bill strips federal courts of jurisdiction to hear cases related to marriage. The effect of the bill would prevent federal courts from hearing marriage cases, leaving the issue to the States where it properly belongs.” Read a news report here.
Will the RINO Republican leadership in the US House and Senate go along with it? We will see. And then Obama must sign it …
9. The latest in the Court’s long history of illegitimate usurpation of power
The problem of the federal courts acting as unelected rulers — contrary to the intent of the Constitution — is not new. In 1861, in his first Inaugural Address, Abraham Lincoln condemned the Supreme Court’s power grab then:
If the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers having to that extent practically resigned their government into the hands of that eminent tribunal.
Over the last several decades it’s only gotten further out-of-control.
In 2005, the Hoover Institution published a paper by Lino Graglia, a law professor at the University of Texas, titled “Constitutional Law without the Constitution: The Supreme Court’s Remaking of America” that described it very well. An excerpt from that article:
The central fact of contemporary constitutional law, however, is that it has very little to do with the Constitution. Nearly all the Supreme Court’s rulings of unconstitutionality have little or no basis in, and are sometimes in direct violation of, the Constitution. Their actual basis is nothing more than the policy preferences of a majority of the Court’s nine justices. The power to assert that the Constitution prohibits any policy choice of which they disapprove has enabled the justices to make themselves the final lawmakers on any public policy issue that they choose to remove from the ordinary political process and to assign for decision to themselves. Over the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death, as in the Court’s decisions on contraception, abortion, capital punishment, and assisted suicide; issues of public order, as in its decisions on criminal procedure, public demonstrations, and vagrancy control; and issues of public morality, as in its decisions on pornography and homosexuality. These are the issues that determine the basic values, nature, and quality of a society. In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system: voting takes place and representatives of the people are elected as lawmakers, but the decisions they reach on basic issues of social policy are permitted to prevail only so long as they are not disallowed by the system’s highest authority.
That’s what we’ve been up against: Nine justices appointed for life who have made themselves the unelected legislators over us all.
10. Immense pressure from the homosexual movement
It’s difficult to describe the enormous amounts of money and sophisticated planning, political maneuvering, and pressure tactics that the homosexual lobby has used in this nationwide march through the federal courts. Millions of dollars have flowed to them from major US corporations and wealthy donors. Adding to that is the flood of major media support (including even FOX News!) that the LGBT movement enjoys. Needless to say, it’s unbelievably one-sided.
On the other hand, most wealthy conservative donors have made their peace with the LGBT movement and have abandoned their support at a time when it’s needed most. And virtually no corporations donate money to the pro-family side of this issue.
The LGBT movement has used its resources and power very aggressively. In just the last several weeks, hundreds of corporations and high-profile politicians, including Republicans, have publicly told the Supreme Court that they want “gay marriage” imposed on America by the judiciary. Virtually the nation’s entire legal community now refuses to even engage cases involving challenges to “gay marriage” — an unpresented turn of events.
Will this push a majority of the Supreme Court Justices over the top? In any other time in history, this case would have been laughed out of any courtroom. So anything is possible.
What do we do next?
By any objective measure, this whole case is a mockery of actual Constitutional law. Yet, the odds are that Ginsburg and Kagan will not disqualify themselves and enough of the rest of the judges will rule to force this insanity on all of America — and which among other things will surely lead to the further persecution of people of faith.
Should the worst happen, we’ll certainly have it rubbed in our faces as quickly as possible. As happened in Massachusetts in 2003, the first thing we will see will be adolescent screams of joy and jumping in the streets by the homosexual radicals, celebrated spectacularly in the mainstream media.
But what about our side? We have to fight back, that’s for sure.
What does that mean? There has been a lot of talk about pro-family “civil disobedience” and “taking to the streets.” But let’s be honest. When the Left threatens civil disobedience the local police schedule double shifts (often to protect them). But when we do it, nobody really pays attention. To most conservatives civil disobedience is not mowing your lawn for three weeks or posting strong articles on FaceBook – not exactly rioting.
And the legal system will surely come down even harder on anyone disobeying the new rulings, as well as state and local non-discrimination ordinances.
MassResistance has some ideas. But let’s hope the worst doesn’t happen.