Sunday, October 11, 2015

It's time for Princeton U. to reevaluate the ever odious Robert George

Robert P. George
Robert P. George
On October 8, the American Principles Project (an organization founded by Robert George) issued a manifesto on their website titled “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.” Therein they call on federal and state office holders to defy the Supreme Court's ruling in Obergefell v. Hodges which holds that state bans on same-sex marriage are unconstitutional. George is the fourth signature but this is almost surely his handiwork (just like the Manhattan Declaration) and it is provided by an organization that he founded. This starts off with:
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships. 
The margin of the majority at the Supreme Court is irrelevant. Unanimous rulings have the same force and effect as five-four decisions. Let us be clear with respect to what the Supreme Court did; Gays have a constitutional right to marriage.

I am not going to quote and respond to this entire treatise but it continues:
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
I disagree. I find that the majority's opinion offers “compelling reasoning” that marriage equality is necessary to provide gays equal protection in accord with the 14th Amendment. If a vacuum of compelling reasoning exists it is a secular argument in favor of same-sex marriage bans. Perhaps an argument from these folks that begins with “In Massachusetts …” What I have seen are convoluted theories and crackpot research that obscure the religious basis for opposing marriage equality. Given the composition of the signatories this looks like it could be yet another enterprise on behalf of the Catholic Church.

At this point the document quotes the four justices in dissent on Obergefell. That might make them feel better but theirs are the losing arguments. These are the expositions that failed to convince a majority of the justices. Then we end up at this gem:
If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:
If?” The ruling in Obergefell is binding law and has been since June 26. From there we get paragraphs about “conjugal marriage,” the right of children to have a mommy and daddy, the slippery slope to something — perhaps polygamy and, of course, the right of Americans to vote on the civil rights of a minority. We've seen it all before. We have seen it in George's book and in his amicus briefs in both United States v. Windsor and Obergefell v. Hodges. George actually thought that his book and some obviously cooked research would affect the decision in United States v, Windsor. Wrong. Again, these are the preposterous arguments that were made throughout the federal courts. These are the same arguments that National Organization for Marriage has been making for eight years. Most people have enough common sense to dismiss them.

Reminder: Obergefell settled this issue!

 This ends at:
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.
What evils? Who gets to decide? Oh, I know; God tells George and George tells the rest of us so it must be true? Things that Robert George, ultra-conservative Catholic, thinks are evil in accordance with his religion? Read that paragraph again. What George has the audacity to present is the idea that Supreme Court rulings he disapproves of are anti-constitutional. The hubris of this man seems to be boundless. And so is his prejudice.

George goes on to quote James Madison (prior to Marbury v. Madison) and Abraham Lincoln (Lincoln was rightfully displeased with Dred Scott). Then he arrives at this stunner:
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is. 

We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court. 
That is incorrect. It is also highly irresponsible. In fact it constructs an outright lie and George knows that it is a lie. It does not comport with the case law. We went through this after the ruling in Brown v. Board of Education desegregated schools in the Jim Crow South.

Shortly after Brown the Arkansas legislature amended the state's constitution in order for segregation to remain in effect. The Little Rock school board (which was desegregating) brought suit in federal court to delay integration because of interference by the legislature and the governor. The court ruled in their favor. However the Eighth Circuit Court of Appeals reversed the lower court. At the Supreme Court this became Cooper v. Aaron. The governor and the legislature asserted that they were not bound by the decision in Brown v. Board of Education. It has a certain familiar ring to it.

In Cooper the Court held that the Supremacy Clause of Article VI of the Constitution made the Constitution the supreme law of the land, just as Robert George states. However, the ruling in  Marbury v. Madison made the Supreme Court the final arbiter of the Constitution. Therefore, Brown v. Board of Education is binding on the states, regardless of any state laws contradicting it. Now the same thing is true with respect to Obergefell. Not that it matters but the decision in Cooper was unanimous.

George then makes his call for action:
We call on all federal and state officeholders:

To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.

To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.

To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.

To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.

George is attempting nullification


Nullification is not only unconstitutional but it is unlawful. You don't have to take my word for it. The extreme right Heritage Foundation arrives at the same conclusion. Just a reminder that all of this is the result of a religious objection to same-sex marriage and anti-gay bigotry.

We are a nation of laws and our Constitution is the supreme law of the land. The Supreme Court is the final interpreter of the Constitution. Therefore, their ruling in Obergefell is the law of the land. This notion that Obergefell is only binding on the named plaintiffs is nonsense. The Court can limit relief only to the named plaintiffs at its discretion. In Obergefell, the Court did not do so. Justice Kennedy quite simply wrote: “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”

If they want to undo Obergefell then they can work on a constitutional amendment. Or they can hope that the balance of the Court shifts and (with standing) they can work a case through the courts to effect a reconsideration. Both are extreme long shots and George knows it. The longer we can marry the more idiotic the objections become because they are never realized.

Prejudicial nullification in this case is an endeavor to sustain bigotry.


The manifesto is not asking people to be conscientious objectors to same-sex marriage and accept the consequences for doing so. What George has done is to falsely manufacture a case for government workers to abandon their responsibilities. Gay tax dollars help to pay those civil servants and office holders. He is also calling for a prejudicial application of justice; something that is prohibited by the American Bar Association. Were it in effect, George's religious objection would make gays second-class citizens. Robert George and many, if not most, of the signatories to this document believe that homosexuals are “objectively disordered.” They further believe that homosexual acts are “intrinsically disordered.” Those are the teachings of the Catholic Church and, by all accounts, Robert George is not a selective observer. He is a fundamentalist Catholic.

Thus the unstated premise to all of this is that gay people are sick perverts. Why would you want to allow sick perverts to marry? Why would you allow sick perverts to raise children? That is the deranged bigoted thinking behind this. Gays getting hitched has no effect, whatsoever, on Robert P. George. Same goes for the rest of the signers. None of them have been affected by same-sex marriage. Gay people are repulsive to George.

George's gravitas stems from the fact that he occupies an endowed chair at Princeton University.

Indeed, his signature on this document reads “Robert P. George, McCormick Professor of Jurisprudence, Princeton University, Founder of American Principles Project.”

George is a bigot. Isn't it time for Robby to move on? He is using his academic position as a battering ram against the rights of gay citizens. Every time he writes one of his anti-gay screeds he notes his academic position. The time has come for Princeton University to stop ignoring the deplorable and bigoted acts of one of their employees. Princeton's failure to do so makes the university complicit. This is most certainly not about academic freedom. Would Princeton accept, in their midst, a professor who claimed – on a national stage – that African-Americans were inferior? Could a Holocaust denier occupy an endowed chair at Princeton? I don't think so.

In the coming days I intend to have a dialog with some folks at Princeton University. This is probably going to result in a Change.org petition for the university to take action for a violation of its diversity policies. Then there is the problem of a professor of jurisprudence trying to effect (unconstitutionally) the nullification of a Supreme Court decision that he does not like. I am also going to have a little chat with the ABA but the primary goal must be for George to be relieved of the credibility bestowed upon him by his academic position. It's a heavy lift.

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