Sunday, October 4, 2015

Austin Ruse wants to knock down the justices of the Supreme Court "a peg or three"

Austin Ruse

On Friday Austin Ruse (head of the anti-gay hate group C-Fam) writes, at Crisis Magazine, “Time to Knock the Supremes Down a Peg or Three.” Most of Ruse's polemic consists of quotes or surmisements  from the works of Matthew Franck, also an ultra-conservative Catholic and a director at the Witherspoon Institute. It seems worth noting that Mr. Franck is not a lawyer and that he taught constitutional law at an undergraduate level — primarily in historical context. I'll get back to Ruse and Franck but first a summary.

Four cases shaped public policy with respect to same-sex marriage:
  1. Lawrence v. Texas. A 2003 decision that struck down state sodomy laws decriminalizing gay sex and, in effect, gay people.
  2. Hollingsworth v. Brown was the Proposition 8 case. In 2013 the Supreme Court determined that a pressure group did not have standing to defend Prop 8 when elected officials declined to do so.
  3. United States v. Windsor. In 2013 the Court determined that the United States government was compelled to recognize same-sex marriages recognized by a state.
  4. Obergefell v. Hodges. In 2015 the Court determined that, according to the equal protection and due process clauses of the 14th Amendment, gays had a constitutional right to marry.
While opponents of marriage equality want to rail about the supposed “tyranny” of “five un-elected judges,” the marriage cases had something else in common. In each of these cases opponents failed to proffer a coherent argument to support the notion that same-sex marriage would adversely affect traditional marriage. That is because the real objection to same-sex marriage was religious disapproval of gay people.

In amicus briefs Robert George went so far as to assert that declining marriage rates in Massachusetts were, somehow, the result of gay marriage which was a deliberate confusion of correlation and causation. Earthquakes and hurricanes are also caused by gay marriage according to some religious people. In appellate courts, lawyers were asked if their theoretical adversity was occurring in Massachusetts. “We don't know — It's too soon to tell.” That was a big help to their cause.

It's all kind of like male gay porn. There is a limit to the originality available in the use of two orifices and a projectile. You can change the participants but it's still the same object going into the same two holes. Of course I wouldn't know personally but so I have been told.

At some point marriage equality opponents tried to coalesce around parenting as an issue, citing a study by Mark Regnerus at UT, Austin. Aside from the fact that the study failed to demonstrate the conclusions that they were claiming, it became obvious that Regnerus was funded by Witherspoon Institute to provide a particular result and that he obliged. And even if he proved that same-sex parents were poor child raisers then that pertains to issues like adoption rather than marriage. Furthermore, the argument deliberately ignored the children that gay parents were already raising. It's another dead end because there is no persuasive argument that those kids would be worse off if their parents were married.

So before criticizing the justices of the Supreme Court they need to do some soul searching. Trying to delegitimize the ruling in Obergefell is a form of masturbation. They cannot effect changes in public policy. It's not Roe v. Wade. There is nobody to portray as an “innocent victim.” Victimology leads them to lionize some narcissistic rube like Kim Davis and it doesn't work. Neither Kim Davis nor Aaron and Melissa Klein (the Oregon bakers) are going to change Obergefell. If in fact Austin Ruse objects to gay marriage because of the teachings of the Catholic Church then I would argue that his considerable energies should be directed towards Catholic adherents — persuading them not to enter into same-sex unions. I would have no objection to that advocacy. At least it would be honest.

However that is not what Mr. Ruse is doing and I do object. According to him:
Besides doing something about certain lawless decisions made by our black-robed masters, something must also be done about how we came to such a place where they can cast their gaze across the fruited plain and whatever catches their fancy becomes the law of the land, indeed higher than the Constitution.
Just because Mr. Ruse does not like gay marriage does not mean that the Court's decision was lawless. Nor do I accept the notion that the majority are “black-robed masters.” As a gun violence survivor I strongly disagree with the majority in District of Columbia v. Heller. I accept, however, that it is the law of the land (at least in DC).

“Black-robed masters?” Please. Is Mr. Ruse's constituency that easily persuaded? Furthermore, no decision of the Supreme Court is “higher than the Constitution.” Contrary to mythology, the Supreme Court is limited to interpreting the Constitution. To the left are justices who feel that the Constitution is a living thing that changes with doctrinal changes. To the right are originalists like Scalia who argue original intent. Justice Kennedy seems to be in the middle.

Heller could have been prevented if the District of Columbia conformed its regulations to the holding of the district court rather than appeal. The only thing that could have prevented Obergefell would have been for the Court to come to a different conclusion in Lawrence. They  did not and Obergefell was a freight train. Ultimately unstoppable. Mr. Ruse continues:
Roe was bad enough, a joke of a decision made out of whole cloth after Justice Blackmun consulted with phony history and the opinion of his young daughter. But Obergefell is much worse, coming as it does after twenty years of everyday Americans making their views abundantly and overwhelmingly known that they reject faux marriage of the same-sex.

Sitting in their august temple they did what they had wanted to do for some time, and to hell with the democratic process so faithfully adhered to by regular folks. They imposed faux marriage on the whole country with the majority opinion written by Justice Kennedy getting snickers from left, right, and center though not from gay guys who are using some of it in their faux wedding ceremonies.
With due deference to Mr. Ruse's faith this is more catechism than argument. First of all, many of the state bans on same-sex marriage went back decades. Maryland, for example, banned same-sex marriage in 1973 (something that was reversed by the electorate in 2012). In 1998 Hawaii and Alaska enacted the first constitutional amendments against same-sex marriage. But attitudes towards same-sex marriage changed. By the time of Obergefell about two-thirds of Americans supported the right to marry. Mr. Ruse knows perfectly well that the democratic process cannot determine the constitutional rights of citizens. Otherwise Brown v. Board of Education would not exist and schools in some states, like Alabama and Mississippi, would likely still be segregated. Loving v. Virginia would not have happened either. Some states might still ban interracial marriage. Ruse continues:
What got us here is an extravagant and despotic notion called judicial supremacy, the case against which is getting a nice airing out by noted legal scholars. One of them gave an important lecture recently at the Washington DC campus of Hillsdale College, what may eventually be one of the last bastions and protectors of the founding vision.

Matthew Franck has taught constitutional law and runs the Center on Religion and the Constitution at the Witherspoon Institute. He begins his lecture (to be published in full in a future issue of the quarterly National Affairs) with his own view that “Obergefell presents us with judicial aggrandizement on a truly grand scale—and not just because its impact on the institution of marriage is so devastating …”
It is hard to call Matthew Franck a legal scholar when he does not have a law degree and has never practiced law. Teaching constitutional law at the undergraduate level does not qualify. More importantly we are, once again, presented with the same argument lacking in support. Neither Ruse nor Franck can demonstrate – with evidence – that gay marriage has any effect on so-called “traditional” marriage, let alone an effect that is “devastating.” It is why I stopped the quote at that point. If they cannot make an argument more persuasive than those that have already been made, what is the point? Well, apparently this tyranny goes back to 1925:
It used to be that the Supreme Court was swamped with cases, 400, 500, 600 and more. They had such a huge caseload that some cases had to be held over from year to year. The issue—I won’t say “problem”—was that many litigants had a mandatory right of appeal to the Supreme Court, and the Court had no choice but to take each of them.

Something called “the Judges’ Bill” of 1925, actually written by the Supreme Court, did away with much of that, and their caseload dropped like a stone. What was mandatory became discretionary. The Court was given the right to decline cases. It was determined that the Court would become “the arbiter of legal issues of national significance.” Do you see the problem here? Idle hands can make much mischief—that, and puffed-up egos.

Franck says the 1925 Judges’ Bill and other reforms “have contributed to an inflation of the Court’s importance and of the justices’ self-importance. And the wholly discretionary control of the Court’s docket by its justices has enabled them to impose their will on the country with a minimum of effort, relying on lower courts to do much of their dirty work.”
Actually the Judiciary Act of 1925 was an act of Congress which followed a similar Judiciary Act of 1891. The 1925 legislation wasn't on a whim. It took nearly five years to finalize. It permitted the docket to be controlled by judicial review. However, only four justices are required to accept a case. In essence it acknowledged that the appellate courts usually get it right. As Ruse and Franck “explain:”
Franck says the 1925 Judges’ Bill and other reforms “have contributed to an inflation of the Court’s importance and of the justices’ self-importance. And the wholly discretionary control of the Court’s docket by its justices has enabled them to impose their will on the country with a minimum of effort, relying on lower courts to do much of their dirty work.”
Oh the tyranny of not clogging the Supreme Court with more cases than it can be adequately briefed on and properly handle. But there is a point to all of this. Franck calls for a mandatory review of all appellate decisions. Again, this is Ruse surmising Franck:
Franck says under such a regime “none of the federal court judgments against state marriage laws would have gone into effect” until the Supreme Court heard and decided each of the cases separately. What that would mean is the Court could not take one case and decide all of them based on that single one.
In other words, marriage equality would have been frustrated for a decade or more. Think about this. Because of their conservative Catholic faith they would intentionally clog up the Supreme Court to have delayed national recognition of gay marriage. Of course the collateral damage to other cases would be considerable. How many years more would it have taken for that Muslim to be allowed to grow a beard in prison?

Fortunately Franck's wet dream will never occur. More importantly, Obergefell is the law of the land. The Church's approval was neither sought nor required. Mr. Franck's objective is to manipulate the law and the courts in such a way as to allow the imposition of Catholic teachings upon law which, of course, is a theocracy which is precisely what they want. Mr. Ruse (speaking for himself)  concludes with:
I relish the thought of our black-robed masters having to slave away in their august chambers on 200, 300, or 400 cases a year. Taking away their time and forcing them to work on legal issues of less than “national significance” might deservedly knock them down a peg or two: in the process, they might not stay quite so long on the court, and our system of checks and balances might end this despotic system of judicial supremacy.
In other words, clog up the Court to reduce the prestige of the justices because sometimes they make decisions that Mr. Ruse and Mr. Franck do not like. Mr. Ruse would not call it “despotic” if the Court ruled consistent with the teachings of the Church in Roe and Obergefell. They didn't so Mr. Ruse and Mr. Franck will just have to deal with gays getting hitched. Such a tragedy that those couples are no longer just shacking up.

I get it. In 2003, as prefect of the Congregation for the Doctrine of the Faith, then Cardinal Ratzinger (now Pope Emeritus Benedict) wrote his treatise on same-sex unions. It concludes:
The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.
And there you have it. The reason that Franck and Ruse are still vibrating over a done deal. In this country, some priest in Rome does not make law and that is a very good thing.

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