FRC Blog

The Constitution and Executive Orders

by Rob Schwarzwalder

November 20, 2014

Family Research Council does not take a position on immigration reform. We’ve got enough on our plate, from protecting unborn children and their mothers from a predatory abortion industry and sustaining traditional marriage as the foundation of our culture to protecting religious liberty as the “first freedom” of our republic.

However, we take a strong position on the Constitution: We believe in it. We agree with the Founders that a written text contains objective meanings and that, to borrow a phrase from Jefferson, neither an activist judiciary nor an impatient president has a right to turn the Constitution into a “thing of wax.”

That’s why conservatives have every right to be concerned, even alarmed, by the President’s pending announcement of an Executive Order on U.S. immigration policy.

The Constitution invests the President with the authority to enact policies to ensure the faithful execution of laws passed by Congress and signed into law by the Executive (Section 3, Article II), and the “executive power” (or “vesting” power) granted the President (Article II, Section I) universally is recognized by constitutional scholars as involving only execution of federal laws, removing from the Executive Branch those officers who serve at the President’s discretion, and the formation and execution of foreign policy.

Then-Supreme Court Justice Robert Jackson in Youngstown Sheet & Tube Co. v Sawyer (1952) offered a three-fold test for whether an Executive Order is valid:

  • When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”
  • When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”
  • When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter … Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

The operative phrase in the above bullets is in the third paragraph: “measures incompatible with the expressed or implied will of Congress.” Clearly, as National Affairs’ Andrew Evans writes, “President Obama’s executive order is intended as a substitute for a law that Congress has not passed.

Finally, federal Courts have ruled that Executive Orders that surpass the express intent of Congress can only be executed in times of national emergency. Even then, according to the

U.S. Code, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

In other words, even in the extreme event of a national emergency, the President has to justify by what authority he is declaring such emergency. And clearly, while both legal and illegal immigration policy involve a host of difficult issues, the Administration has not demonstrated, nor can it demonstrate, that any such emergency exists. If it did, why did the President – as he himself put it – wait a full year for Congress to act?

Legal scholar William J. Olson and Rutgers University historian Alan Woll have rightly noted that “Powers were separated not to make government more efficient but to restrain the natural bent of men, even presidents, to act as tyrants.” Mr. Obama hasn’t gotten what he wants, so he is acting like a monarch unconstrained by legality. This is not constitutional, republican governance. It is something else altogether – something that should evoke in everyone who values his Constitution-based liberty apprehension about what might come next.

Continue reading

Fashion Isn¿t the Most Important Thing to Come Out of Milan

by Chris Gacek

November 19, 2014

If you have some time, watch FRC’s lecture with Jim Tonkowich discussing his new book, The Liberty Threat: The Attack on Religious Freedom in America Today. One particularly interesting aspect of the talk was Tonkowich’s discussion of the rise of religious freedom during the Roman Empire. Of particular importance was the Edict of Milan of 313 A.D. Read George Weigel’s First Things blog on this important document. Referencing the great church historian Robert Louis Wilken (The First Thousand Years), Weigel describes the document’s foundational significance in Western political thought and practice:

[The Edict] involved all religions, not just Christianity; it went beyond mere toleration and embodied a more robust idea of religious freedom, based on the conviction that true faith and true worship cannot be compelled; and it treated the Church as a corporate body with legal rights, including property-owning rights. Thus the not-really-an-Edict of Nicomedia and Elsewhere cemented into the foundations of the West ideas first sketched by the Christian philosopher Lactantius: that coercion and true religious faith don’t mix because “God wishes to be adored by people who are free” (as Joseph Ratzinger would rewrite Lactantius a millennium and a half later, in the 1986 Instruction on Christian Freedom and Liberation). The rather humane provisions of the mis-named “Edict of Milan” were not infrequently ignored in subsequent Western history; but that doesn’t alter the fact that the “Edict” had a profound and, in many respects, beneficial influence on the future of the West.

(Weigel quotes a passage from Wilken revealing that the Milanese origins of the documents putting the policy into effect arose from meetings between Emperors Constantine and Licinius during a state wedding.)

So, watch the lecture and learn other interesting things that will impress your friends and confound your opponents.

Continue reading

News Flash: The Pope is Pro-Life

by Rob Schwarzwalder

November 17, 2014

As a non-Catholic, I have followed with some interest the controversy concerning Pope Francis and his attitude toward abortion.  Although he has made clear pro-life statements all along (“Every unborn child, though unjustly condemned to be aborted, has the face of the Lord, who even before his birth, and then as soon as he was born, experienced the rejection of the world”), some voices on the Left seem to have become nearly giddy at the prospect of the Pope softening his church’s stance on the sanctity of life.

Let’s put the issue to rest: Following are excerpts of comments he made today to a group of Italian Catholic physicians in Rome.  Read them, and then ask yourself if there’s any way you can say this man is not pro-life:

… in the light of faith and right reason, human life is always sacred and always “of quality”. There is no human life that is more sacred than another - every human life is sacred - just as there is no human life qualitatively more significant than another, only by virtue of resources, rights, great social and economic opportunities … When so many times in my life as a priest I have heard objections: “But tell me, why the Church is opposed to abortion, for example? Is it a religious problem?” No, no. It is not a religious problem. “Is it a philosophical problem?” No, it is not a philosophical problem. It’s a scientific problem, because there is a human life there, and it is not lawful to take out a human life to solve a problem. “But no, modern thought…” But, listen, in ancient thought and modern thought, the word “kill” means the same thing. The same evaluation applies to euthanasia: we all know that with so many old people, in this culture of waste, there is this hidden euthanasia. But there is also the other. And this is to say to God, “No, I will accomplish the end of life, as I will.” A sin against God the Creator!

Continue reading

Meddling Freedom From Religion Foundation Gets Tossed Out of Court

by Travis Weber

November 14, 2014

Thankfully, the U.S. Court of Appeals for the 7th Circuit, in Freedom from Religion Foundation v. Lew, refused to let stand a decision which had declared the clergy housing tax allowance unconstitutional.

This case began when the Freedom from Religion Foundation (FFRF) sued the U.S. government alleging that the government grants tax benefits based on religion. In a quite ill-advised lower court ruling, U.S. District Judge Barbara Crabb held that the FFRF could properly bring the lawsuit and that the tax allowance violated the Constitution. The case was then appealed to the 7th Circuit.

To understand how ridiculous the FFRF’s claim is, we must understand a little bit about the doctrine of “standing” to bring a lawsuit in federal court.

As the 7th Circuit explained, to bring a lawsuit, a party must show:

(1) they were injured in a concrete and personal way,

(2) that the injury can be fairly traced to the defendant’s action, and

(3) that the injury is likely to be remedied by a favorable judicial decision.

In addition, the court explained, merely being offended at the government’s action does not give one grounds to sue. Obviously, the fact that an atheist group is upset at other religious entities getting some tax relief for their ministers does not “injure” the atheist group at all. There is simply no personal injury present.

The 7th Circuit agreed, noting that the FFRF could not be injured by being denied any such tax exemption because the group never even asked for it.

The court also noted the FFRF’s own difficulty in arguing for liberal standing rules – almost anyone would have standing to sue for virtually any reason! This would result in over-clogged and over-worked federal courts, which, as they sift through heaps of frivolous suits, would have to take time away from truly meritorious suits where parties have been actually injured. To say this would be an injustice is an understatement.

The 7th Circuit concluded as follows:

To summarize, plaintiffs do not have standing to challenge the constitutionality of the parsonage exemption. A person suffers no judicially cognizable injury merely because others receive a tax benefit that is conditioned on allegedly unconstitutional criteria, even if that person is otherwise “similarly situated” to those who do receive the benefit. Only a person that has been denied such a benefit can be deemed to have suffered a cognizable injury. The plaintiffs here have never been denied the parsonage exemption be-cause they have never requested it; therefore, they have suffered no injury.”

Nevertheless, it’s troubling to think the FFRF’s claims could even be considered more seriously had it asked for and been denied the exemption. Such a possibly should serve to highlight the way the suppressors of any religious expression in public life manipulate our legal system in wasteful and unproductive ways.

The FFRF has hardly been “injured” here by any reasonable understanding of that term. Courts should take note of this when the FFRF is back before another judge claiming some other mental or psychological “injury.”

Continue reading

Sketchy Judicial Assignments in Ninth Circuit Marriage Cases

by Chris Gacek

November 14, 2014

The American people are justified in wondering if they are ruled by interlocking ruling bodies that operate in secret, govern with unbridled duplicity, and are immune to correction by the People acting through their representatives or acting directly in referenda. There have been many prominent examples in the last two months. Two involve our imperious judicial oligarchy.

But, first we have the recent reports of repeated statements by Obamacare insider and MIT economist, Jonathan Gruber, calling the American people “stupid” and boasting that Obamacare was foisted on the public through a determined campaign of lying and deviousness. Lies on top of lies on top of lies.

Second, in early October the U.S. Supreme Court appeared to act with stunning cynicism when it dismissed requests for review of marriage-definition cases arising out of several federal appellate courts. The Court had heard an identical case when it reviewed the constitutionality of California’s Proposition 8 less than two years ago. However, the Prop 8 case was dismissed because the plaintiffs, the proponents of Prop 8, were deemed to lack “standing” to sue. This conclusion was reached because California’s Attorney General took a dive in the litigation and refused to defend a ballot-approved amendment to the California constitution. (Prop 8 was supported by a 52% majority in November 2008.)

The October 2014 cases petitions to the Supreme Court checked all the boxes for standing, but the cases were still turned away allowing lower court rulings that struck down male-female marriage to stay in place. It appeared the that Supreme Court was taking the coward’s way out by allowing lower courts to redefine marriage in America without publicly putting forward a majority opinion explaining how the male-female definition of marriage could violate any constitutional principle. This Court, it appeared, didn’t even have the integrity to write its own Roe v. Wade for marriage. On November 6th the U.S. Court of Appeals for the Sixth Circuit supported the traditional marriage definition. Now that there is a split among the circuit courts, the Supreme Court’s stealth imposition strategy won’t work – if that is what they were doing. Now the nation is left with an incoherent stew of constitutional slop consisting of incongruent reasoning and standards. The reputation of the Supreme Court is being badly damaged each day this continues.

Well, if you were to think that the reputation of our black robed masterminds couldn’t get much worse, think again. In October 2014 a panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision striking down the male-female marriage regime established be the voters of Nevada and Idaho. (The court reversed an excellent Nevada opinion that had supported traditional marriage.) In mid-October, a private group in Nevada, the Coalition for Protection of Marriage, filed a petition and a supporting affidavit with supporting statistical analysis with the full Ninth Circuit purporting to demonstrate that the panels in cases on homosexual-related issues were not being assigned randomly. In fact, they claimed that two of the court’s most liberal members (Stephen Reinhardt and Marsha S. Berzon) were greatly overrepresented in such cases. Here is how the Coalition for Protection of Marriage summarized its claim of bias in panel selection:

The attached statistical analysis … explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Cases—the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme). (Petition, 3-4.)

If assessed accurately, this assignment pattern was not random. The case assignment was rigged to help assure the politically desired outcome.

It goes without saying that this is an extremely serious accusation that needs investigation not just by some handpicked Ninth Circuit lackey but by the Chief Justice of the U.S. Supreme Court and by the new Senate Judiciary Committee to be chaired by Senator Grassley.

Continue reading

Elections Deal Another Setback to the “Rainbow Revolution”

by Peter Sprigg

November 14, 2014

On October 30, just five days before the mid-term elections, the McClatchy newspaper chain ran a breathless article under the headline, “Rainbow Revolution: U.S. welcoming gay marriage, changing politics.”

Much of the focus of the article was on changes in attitudes toward homosexuality in the Republican Party. It began with an account of something that it said “would have been unimaginable even a couple years ago.” It told how “[t]he most powerful Republican in Washington,” House Speaker John Boehner, “flew to San Diego … to help raise money for an openly gay candidate for the House of Representatives” (Carl DeMaio). It reported that DeMaio, along with Richard Tisei of Massachusetts, were “[a] pair of openly gay Republicans … running in competitive House races.” According to the article, Boehner’s “decision to campaign for gay candidates was met with surprisingly nominal opposition, which he was able to brush aside quickly.”

The McClatchy article, penned by Anita Kumar, also highlighted Monica Wehby, the (heterosexual) Republican candidate for the Senate in Oregon, who ran a TV ad highlighting her support for redefining marriage, “featuring a gay man who successfully fought the state’s same-sex marriage ban.”

Democrats were not completely ignored, however. The article also cited Maine “where Democrat Mike Michaud could become the first openly gay governor in the nation.” Meanwhile, “In Colorado, Democratic Sen. Mark Udall launched a social media campaign against his Republican opponent for voting against a bill that would protect gays from discrimination.”

Apart from specific candidates, this “first story in an occasional series on the changes in American attitudes about gays and gay marriage” declared, “After decades of solid opposition, a majority of Americans now support marriage between those of the same sex.”

That was the media spin on October 30, 2014.

What a difference five days make.

DeMaio and Tisei, the two homosexual Republican Congressional candidates? Both lost.

Monica Wehby, the Republican Senate candidate who considers someone a hero for helping to overturn a popular vote defining marriage as the union of a man and a woman? She lost.

Democrats Michaud and Udall? They both lost, too.

And that “majority” that supposedly supports same-sex “marriage?” According to nationwide exit polls on Election Day, it was only 48%—exactly the same proportion who continue to oppose such a redefinition (and a decline from the 49-46% plurality which supporters of marriage redefinition had in the 2012 exit polls). This was based on a poll question asking, “Should your state legally recognize same-sex marriage?” Note that polls which correctly frame the issue by asking about the definition of marriage have consistently shown that most American continue to believe that marriage should be defined as the union of one man and one woman. For example, in this 2013 poll, when asked, ““Would you approve or disapprove of changing the definition of the word marriage to also include same-sex couples?” only 39% approved while 56% disapproved.

While the media may view the world through rainbow-colored glasses, and there may be a “rainbow revolution” underway on the subject of marriage in the courts (which, under our constitutional system, are supposed to be the least revolutionary branch of government), it is clear that actual voters—you know, “We, the People,” who are the sovereign rulers of this country—are not so eager to join this “revolution.”

As FRC President Tony Perkins pointed out after the election, the concern about candidates like DeMaio, Tisei, and Wehby “was not these candidates’ sexual orientation, but their policy orientation.” The threat to the family posed by redefining marriage, and the threat to religious liberty posed by the aggressive agenda for the forced affirmation and celebration of homosexuality, are becoming ever clearer, and a candidate’s support for these radical policies is not something that will motivate the Republican base to turn out and support them.

In fact, exit polls showed that opposition to redefining marriage remains widespread—and even dominant in several of the key battleground states which were crucial to the Republican takeover of the Senate. The most complete set of exit poll results that I was able to find in the days after the election was posted online by NBC News, and included data on the marriage question for 24 states.

In Arkansas, Republican Tom Cotton unseated Democratic incumbent Mark Pryor in a state where voters said “No” to same-sex “marriage” by a whopping margin of 69% to 27%. In North Carolina—the most recent state to adopt a marriage amendment, in 2012—Republican Thom Tillis beat Democratic incumbent Kay Hagan in a state which still opposes a revisionist view of marriage by 57% to 39%. In Louisiana, incumbent Democrat Mary Landrieu in probably in trouble in a December runoff against Republican challenger Bill Cassidy (Louisiana is the most pro-marriage state in the NBC exit polls, opposing a redefinition of marriage by 73% to 25%). In West Virginia, Republican Shelley Moore Capito will replace retiring Democratic incumbent Jay Rockefeller (the state’s voters oppose same-sex “marriage” by a 67% to 31% margin).

Meanwhile, Republican incumbents Mitch McConnell, Tim Scott, and Pat Roberts held off Democratic challengers in Kentucky (against same-sex “marriage” 64%-33%); South Carolina (62%-34%); and Kansas (51%-45%). In Georgia, Republican David Perdue held the seat of retiring incumbent Republican Saxby Chambliss (Georgia voters oppose same-sex “marriage” by 62%-34%).

Only one Democratic Senate candidate was victorious in a state where a majority of voters oppose same-sex “marriage”—incumbent Sen. Mark Warner of Virginia, who narrowly edged out establishment Republican Ed Gillespie (the state says “no” to recognizing same-sex “marriage” by 53% to 45%).

So Democrats fared extremely poorly in states that oppose same-sex “marriage.” Yet it is undeniable that the country is sharply divided on this issue. The 24 states with exit poll results on this issue reported on the NBC website included ten with majorities (and two more with pluralities) against recognizing same-sex “marriage,” eleven with majorities in favor of it, and one (Florida) perfectly mirroring the 48% to 48% tie nationwide.

Some have argued that as public opinion gradually shifts toward more people making peace with same-sex “marriage,” the Republican Party will have to abandon its staunch opposition in order to keep up with the times. Did Republicans who oppose same-sex “marriage” struggle at the polls in the states where majorities of voters reportedly support it?

The answer is no. Joni Ernst of Iowa, Dan Sullivan of Alaska, and Cory Gardner of Colorado are all Republicans who were victorious in key battleground states without endorsing same-sex “marriage,” even though its recognition is reportedly supported by voters in Iowa (50% to 42%), Alaska (55% to 41%) and Colorado (62% to 32%). Scott Brown, on the other hand, lost in New Hampshire (where voters support recognition of same-sex “marriage” by the largest margin reported, 70% to 28%)—despite being endorsed by the pro-homosexual Log Cabin Republicans.

Although not tested by the exit polls, my theory is that even as polls seem to show significant support for the redefinition of marriage, that support is very thin, whereas the opposition is much more deep-seated. In other words, far more of those who express opposition to the redefinition of marriage do so out of deep conviction, and are likely to oppose a candidate based on this issue alone. Many of the 40% of Americans who (according to the exit polls) attend religious services at least once a week probably fall into this category.

On the other hand, much of the expressed support for changing the definition of marriage is just a matter of going along with the perceived cultural tide, rather than a deep conviction. (Indeed, with the recent spate of court rulings in favor of redefining marriage across the country, answering “yes” to the question, “Should your state legally recognize same-sex marriage?” may amount to little more than a declaration that their state should obey rulings of the courts—not that such a definition is the ideal public policy).

The percentage of voters who will oppose a candidate only because he or she refuses to endorse marriage redefinition is probably relatively small—mostly, just the 1.6% of American adults who (according to a recent federal survey) self-identify as gay or lesbian.

In summary, the historic 2014 elections for the Senate demonstrate that supporting the redefinition of marriage and the rest of the pro-homosexual agenda is a loser, and opposing it is a winner, across the country—especially for Republican candidates.

So much for the “rainbow revolution.”

[Below are the exit poll results on marriage for all 24 states where they were reported by NBC News, in order of the most to least opposition to redefining marriage:]

Question: “Should your state legally recognize same-sex marriage?”

State Yes No

Louisiana 25% 73%

Arkansas 27 69

West Virginia 31 67

Kentucky 31 67

Georgia 34 62

South Carolina 34 62

North Carolina 39 57

Ohio 41 54

Virginia 44 53

Kansas 45 51

Michigan 45 49

Pennsylvania 47 49

Florida 48 48

[Total U.S. 48 48]

Wisconsin 52 45

Iowa 50 42

Alaska 55 41

Minnesota 58 39

Illinois 58 38

New York 59 36

California 61 35

Colorado 62 32

Oregon 64 32

Maine 66 32

New Hampshire 70 28

Continue reading

Hashtag Persecution

by Jourdan Stuart

November 14, 2014

When one hears a story about God’s people being persecuted for their beliefs, many examples throughout history come to mind. Adolph Hitler, the German dictator, ordered the extermination of six million Jews during the Holocaust. Many of the Jews were marched into gas chambers as participants of one of the largest genocides in world history. The Biblical account of Shadrach, Meshach, and Abednego is a historic example of individuals being persecuted for their religious beliefs. In this story, King Nebuchadnezzar throws Shadrach, Meshach, and Abednego into the fiery furnace for refusing to worship the king’s golden image. Mark Twain once said, “History doesn’t repeat itself, but it does rhyme”.  Is genocide on a large scale more appalling than the individuals affected by it?

One contemporary example of modern-day persecution is the story of Asia Bibi of Pakistan. In 2010, this mother of five was convicted of blasphemy for speaking out against Muhammad and was sentenced to death. Her government-justified execution does not end her story but extends to her family who are facing a similar fate.  Supporters can bring attention to her story using the hashtag #FreeBibi via social media.

Meriam Ibrahim was sentenced by the Sudanese government to death by hanging for her Christian faith.  While in prison, Meriam gave birth to her child. After much international pressure she obtained her release and was returned to the United States.

Saeed Abedini is a pastor from Idaho being held in Rajaei Shahr prison for building an orphanage in Iran.  In 2012, Saeed, after being detained for being a Christian, was denied a court hearing, and was placed in a solitary confinement facility. He has been tortured and his communication with his family has been cut off. Facility medical staff refused him treatment because he is an “unclean” Christian.  In 2014, his condition deteriorated and he was transported to a hospital outside of the prison, where he received only minimal medical attention. U.S. Secretary of State John Kerry has called for Saeed’s release and over 610,000 people have signed a petition to that end. Saeed and his family have remained steadfast thanks to the support and prayers of godly people. Awareness is being raised for Saeed on social media through the hashtag, #SaveSaeed.

North Korean officials were detaining American, Jeffery Fowle, an Ohio native, this past spring simply for leaving a Bible in his hotel room. Thankfully, through the efforts of the White House and prayers of believers worldwide, Mr. Fowle has obtained freedom. Matthew Miller and Kenneth Bae, Americans being held in North Korea for “crimes” of the same nature, were also recently released.

Many in the U.S. are not aware of the persecution experienced by Americans overseas. As noted, Americans are not immune to this persecution. We must pray that God will give strength to endure trials, and we must pray for the safe return of our brothers and sisters around the world facing persecution for their beliefs. We must also pray for our leaders to aggressively defend persecuted Christians around the world.

Continue reading

How Important is Election Day Turnout? Ask Anthony Brown.

by Peter Sprigg

November 11, 2014

On Election Day (or, with early and absentee voting, during election season), not every citizen who is registered to vote will actually vote. There are a variety of reasons. Some have not put in the time and effort to educate themselves about the people and issues on the ballot. Some don’t believe their vote will make a difference. Some may be confident that their favored candidate(s) will win anyway; some may be fatalistic that their favored candidate(s) will lose anyway. Some may have logistical problems getting to the polls; some may simply forget.

Because of all these factors, it is a given for anyone who has ever been involved in a political campaign that “turning out your voters” is a key to victory. Success hinges not just on persuading a majority of your fellow citizens that you are the best candidate; it also hinges on success in motivating those voters to actually vote.

It should be no surprise that the highest voter turnout generally comes in presidential election years. That is when the media coverage of politics is at its most intense. Even people who pay no attention to local or state legislative races, or even races for Congress or Governor, will generally form an opinion on which candidate should be the next President of the United States, and will make an effort to express that view at the ballot box.

That means, however, that in a non-presidential year, like the 2014 mid-term elections, fewer votes will be cast, and therefor “turning out your voters” is even more crucial.

Anthony Brown learned that the hard way.

Brown has served two terms as Lieutenant Governor of Maryland under Gov. Martin O’Malley, the former mayor of Baltimore. O’Malley is leaving office and is considered a dark horse candidate for the 2016 Democratic presidential nomination. Brown was his designated successor for the governor’s mansion, easily winning the Democratic nomination.

The election should have been a shoo-in for Brown. Maryland is one of the bluest of deep blue states. President Obama carried the state in 2012 with 61% of the vote.

In one of the biggest (and most under-reported) upsets on election night, however, Brown lost to his Republican opponent, Larry Hogan, 51%-47%.

I was curious as to how big a role turnout played in this surprising outcome, so I went back to look at some vote totals I compiled after the 2012 election. (I had written a blog post then about how even in the four states which did not vote to defend the definition of marriage as the union of one man and one woman, the pro-marriage vote had well exceeded the vote received by Republican nominee Mitt Romney.)

Comparing those votes with this year’s governor’s race confirmed the importance of turnout. Although Hogan won in 2014 with 51% of the vote, and Romney lost Maryland badly in 2012 with only 36% of the vote, the raw number of votes Hogan received in victory was only 91% of the number of votes Romney received in defeat.

What does that say about Brown? He received less than half as many votes as President Obama did in 2012—only 792,000 compared to Obama’s 1.6 million.

A similar trend probably prevailed across the country. Masses of Obama voters just stayed home on Election Day—leading to the Republican wave we saw on Election Night.

Continue reading

The Ghost on the Wall

by Robert Morrison

November 10, 2014

I remember the incident in August, 1962. It was televised all over the world. A 17-year old carpenter’s assistant named Peter Fechter from East Germany was trying to escape across the plowed earth separating the inner and outer structures of what had become known as the Berlin Wall. Communist border guards known as Volkspolizei (People’s Police, or VoPos, for short) shot Peter in the back. He bled. And he cried. And cried. He begged someone to come and help him. He lay there for hours, whimpering like a child. This video clip says it was as if his life was ebbing away. No, it wasn’t as if. His life was ebbing away. I saw it. I hated Communism because of that. I never wavered in my belief it was fundamentally evil.

Those were happy days in America. I remember the carefree days at the beach that summer, going sailing on the Great South Bay, and the almost new Oldsmobile my parents helped me buy. Like Peter Fechter, I was just 17. Happy as I was then, I never forgot witnessing Peter Fechter’s real-life murder on TV.

Ronald Reagan never forgot Peter Fechter, either. He spoke of the Berlin Wall for many years thereafter. He always personalized that grim gray obscene concrete Wall (“die Mauer”) by including the story of Peter Fechter.

While President Richard Nixon went to Moscow in 1972 and gave Soviet Communist Party boss brand new American-made cars as gifts, Reagan continued to speak out against the inhumanity of a system that could build a Berlin Wall and shoot down teenagers who simply sought to escape Communism’s “Workers’ Paradise.”

After Nixon’s disgrace, President Jimmy Carter went to Vienna to meet with Brezhnev in June, 1979. He let Brezhnev kiss him on their first date! Brezhnev took the measure of the man. Six months later, he kissed off Carter when he sent Soviet troops into Afghanistan.

President Carter went on national TV to explain that he had learned more about the USSR in the previous three days than in the previous three years.

I later interviewed Amb. Malcolm Toon, the career diplomat whom Carter had sent to Moscow. Amb. Toon told me that no elected leader in Western Europe could have made such a stunning statement. If he had admitted to such incompetence, that Prime Minister or Chancellor would have been voted out of office the very next day in parliament!

As President, Ronald Reagan remained true to his convictions. In 1987, the American press corps was in its full-gush mode over Soviet Communist Party boss, Mikhail Gorbachev. The chin-pulling opinion writers who pass for serious analysts in our prestige press were all agog over Gorbachev’s new liberalization schemes for the USSR and the Soviet bloc. They repeated Gorbachev’s spin with practiced ease.

President Reagan wasn’t buying it. He went to the Brandenburg Gate, in the shadow of the Berlin Wall, on June 12, 1987.. He took with him the speech text he and Peter Robinson had crafted, the one our State Department had rejected three times. Sec. of State George Schulz, White House Chief of Staff Howard Baker, and National Security Advisor Gen. Colin Powell all tried to dissuade the President from saying anything that might upset U.S.-Soviet relations. Reagan was quiet, but firm, with his staff. “I think I was elected,” he mildly told Peter Robinson and that line “Tear Down this Wall” stayed in the speech.

Today, we are celebrating twenty-five years of freedom for the people of Germany and Eastern Europe. The fall of the Berlin Wall and the crumbling of that Evil Empire began this day in 1989. Reagan never claimed to have been the one who brought about this stunning change. But he was the one Western leader who never lost faith that Soviet Communism could be brought down. He told his aides: We win; they lose.

The Atlantic’s website provides this helpful remembrance of the Berlin Wall. It contains, unfortunately no references to President Kennedy’s great speech there in 1963, or President Reagan’s inspirational address of 1987.

This most interesting monument—is called the “Lichtgrenze” or Light Border. It’s well worth seeing. Thanks to the liberal editors of The Atlantic, the former Soviet dictator, Gorbachev gets a bit part in the photomontage. Thank you, General Secretary Gorbachev for not shooting any more of Peter Fechter’s countrymen!

Today, I will remember the Berlin Wall and the joy of the Germans—and all of us—when we heard young people there exclaim “Die Mauer ist Gefallen!” The Wall is Down!

My friend and colleague, FRC Senior Fellow Peter Sprigg was in Germany when the Wall came down. Then a young liberal, our Peter was honest with himself and his friends. “This is Reagan’s doing,” Peter Sprigg said then. Peter has been a recovering liberal ever since.

Ronald Reagan never claimed credit for the Fall of the Wall. But he did go there and challenge Gorbachev to prove his liberalization schemes by tearing down the Wall. Reagan was the first President since John F. Kennedy to draw a bright line between freedom and tyranny. “Lass’sie nach Berlin kommen” the young President had said—Let them come to Berlin.

President Reagan did something there that even brave young Kennedy did not do. He described a radio tower built by the East German Communists to overshadow all of Berlin’s church steeples. The President noted that the tower had a defect that the atheist rulers of East Germany had desperately tried to etch out with acid, sandblast, or paint over.

Still, Ronald Reagan said, when the sun struck the globe on that tall tower, it reflected the Sign of the Cross.

Continue reading

U.S. Court of Appeals for the Sixth Circuit: Upholding marriage and democracy

by Travis Weber

November 7, 2014

On November 6, 2014, the U.S. Court of Appeals for the Sixth Circuit, in an opinion written by Judge Jeffrey Sutton, held that the marriage laws of Kentucky, Michigan, Ohio, and Tennessee do not violate the federal Constitution.

The opinion is a model of judicial restraint. Judge Sutton declared that states may see fit to legalize same-sex marriage, as multiple states already have, but that decision is to be left to the people of the states; the Constitution does not permit a “poll” of federal judges about “whether gay marriage is a good idea.”

A number of arguments were raised by the challengers of the marriage laws. Judge Sutton confronted all of them, and methodically explained why they are each insufficient to entitle the challengers to relief.

The 6th Circuit is simply following precedent, which it is required to do

The Court first explained that its position as an intermediate court requires it to follow on-point precedent, which is readily available in the case of Baker v. Nelson. Even in light of Loving v. Virginia (which had been decided four years previous to Baker), the Minnesota Supreme Court in Baker held that there was no federal constitutional right to same-sex marriage, for “‘in commonsense and in a constitutional sense … there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.’” The losing party appealed to the Supreme Court, but the Court dismissed the constitutional same-sex marriage claim, thus establishing Supreme Court precedent binding the 6th Circuit in this case.

Neither does United States v. Windsor change the calculus, for Windsor and Baker dealt with different issues. As for the argument that Windsor and other cases constitute a “doctrinal development,” Judge Sutton relies on the explicit instruction of the Supreme Court in other cases to conclude, quite reasonably, that Supreme Court precedents (which include Baker) must be followed until the Supreme Court makes clear otherwise. Unless the Supreme Court expressly overrules Baker by name, or by outcome, the 6th Circuit is bound by it. In addition, Judge Sutton clearly repudiated the notion that Windsor controls the present question somehow – noting that Windsor did not decide whether there was a constitutional right to same-sex marriage.

This type of solid logic is great to see; and shows that judges who have ruled otherwise have recklessly picked their favorite cases and twisted them to fit a favorable narrative. These other rulings finding a federal right to same-sex “marriage” have torn logic from its moorings; this is all the more apparent when contrasted with Judge Sutton’s solid logic here.

Baker independently provides grounds to conclude there is no constitutional rights claim to same-sex marriage, but Judge Sutton continues to address the remainder of challengers’ arguments nevertheless.

The original meaning of the Constitution does not offer support for same-sex marriage

Considering that the Constitution is an agreement between the people of the United States and the political leaders entrusted to govern them, Judge Sutton noted, its terms can only be changed with the consent of the people. For this reason also, clarity in interpretation and understanding are all the more important. There is no clear provision or understanding of the Constitution’s terms conferring a right to same-sex marriage. The Supreme Court also clearly looks to long-established historical track records of how constitutional provisions are to be interpreted – as revealed by precedent on a number of different constitutional provisions. Therefore, with this understanding, states are permitted, but not required, to legally allow marriage between members of the same-sex. If lawyers still invoke the original meaning of the Magna Carta, is it too much to ask that the original meaning of the Constitution (which, as Judge Sutton noted, no party to the case has suggested permits same-sex marriage) be respected? Indeed, it is not. Judge Sutton concluded that the original meaning of the Constitution and the historical record of what it permits does not reveal any constitutional right to same-sex marriage.

The state marriage laws meet rational basis review

Judge Sutton next concluded that the state marriage laws at issue meet rational basis review, which is satisfied as long as there is “any plausible reason” for the laws. Indeed, “[a] dose of humility makes” the Court “hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”

The Court noted it is clearly rational for the state to want to regulate the effects of sexual activity – which raises very important questions such as who is responsible for children produced by sexual activity, how many mates a person may have, and who is responsible for children which one or more of the partners helped to produce. The fact “[t]hat we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.” This alone is evidence of the rational basis of such laws. Moreover, “rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges,” Judge Sutton concluded. “By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality.”

It is also clearly rational for the states to want to wait and see what happens as a result of the legalization of same-sex marriage before changing their own laws on a norm which has existed for centuries. Developments in the United States on this issue have been rapid-fire, and yet at the same time, many states have simply left in place the norms to which they have always held. This is certainly rational, for “[a] Burkean sense of caution does not violate the Fourteenth Amendment.”

Either of these two grounds would independently satisfy rational basis review. Yet even the challengers’ own “love-and-commitment” definition of marriage would fail under their view of rational basis review. For no state requires couples, whether gay or straight, to be in love. Yet on the other hand, their definition fails to account for plural marriages, for there is “no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.” The Court proclaimed, “[i]f it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” Judge Sutton noted that the challengers “have no answer” on this point. Yet “[w]hat they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage.

Judicial deference to the people is a serious issue under rational basis review. Indeed, as Judge Sutton noted, the Supreme Court has held that a “State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism?”

Ultimately, rational basis review is clearly satisfied here because either the regulation of sexual activity or a decision to proceed with caution on marriage laws would satisfy the constitutional standard. Thus the Court could dispose of the case at this point. But Judge Sutton continues to address the many arguments raised by the challengers – who no doubt are hoping that one of them would stick.

The voters in the states cannot be painted with the broad brush of “animus”

Judge Sutton next dismissed the idea that the state marriage laws are driven by animus, noting that the laws (which there are plenty of legitimate reasons to support) merely hold in place norms which have been around for the entire history of civilization. As the Court noted, “if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.” How could the voters be blamed for feeling this way, when judges around the country were starting to strike down these laws out of the blue? It was at this time that voters decided to codify these long-held traditions in law – an act which the Supreme Court itself affirmed to be their prerogative to decide sensitive public policy issue in Schuette v. Coalition to Defend Affirmative Action. Painting the voters of the states with the broad brush of animus is “no less unfair” than portraying all supporters of same-sex marriage as intent on destroying American families to the core. Thus the idea that animus has driven state marriage laws, and that this serves as a reason to find them unconstitutional, fails entirely.

There is no fundamental right to same-sex marriage in the Constitution

The Court next tackled the question of whether there was a fundamental right to same-sex marriage, beginning by noting that it does not appear explicitly in the Constitution, and next by finding it is not historically “deeply rooted” as necessary to “ordered liberty.” Loving does not support the idea that this right historically existed. Loving did not use the term “opposite-sex” marriage, but that would have been redundant. For in Loving the Court proclaimed that marriage was “fundamental to our very existence and survival” – referring to the procreative aspect of marriage. Judge Sutton reasoned:

Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.”

Neither do Zablocki v. Redhail or Turner v. Safley supporter the challengers’ claim here, for “[i]t strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.”

Judge Sutton also noted that the Supreme Court has chosen not to subject laws regulating other aspects of marriage – such as divorce laws, polygamy laws, and laws regulating the age and familial status of those entering marriage – to strict scrutiny. As is the case with same-sex relationships, there are other areas of action intersecting with marriage laws which do not implicate fundamental rights subject to strict scrutiny.

In conclusion, there is no fundamental right to same-sex marriage – it is not mentioned in the Constitution, and cannot be recognized under the applicable legal standard.

Sexual orientation is not a “discrete and insular class without political power”

As the Court noted, rational basis review applies to sexual orientation classifications. The Supreme Court has never held that heightened review applies, and has not recognized a new suspect class in over four decades. Windsor does not support any contrary conclusion; rather, Windsor overwhelmingly supports the conclusion that marriage law and policy is to be left in the hands of the states. If it wasn’t clear enough, Judge Sutton emphasized the point again: Windsor does not support a federal constitutional right to same-sex marriage – any other reading “would require us to subtract key passages from the opinion and add an inverted holding.” Thus there is no heightened review applied in this case.

The notion of “evolving meaning” cannot support the legalization of same-sex marriage

Even if changing mores are examined for whether they can support new judicial decision-making, they do not support the idea that laws upholding natural marriage must be struck down. Such considerations are dependent on society’s values (not judges’ values), and thirty-one states would continue to permit only natural marriage if given the choice. If the “pacing” of the change of this issue in society is to be considered, and the challengers desire is to examine judicial decisions as part of this trend, what about the “pacing” of state legislatures’ decisions and the deference due to their interest in caution?

Moreover, even if international legal regimes are examined on this point, Judge Sutton observed that the great majority of countries have retained natural marriage. The European Court of Human Rights even held that European human rights laws do not guarantee a right of same-sex marriage. The Court makes a good point: “What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.”

In concluding this section of his opinion, Judge Sutton noted “[i]t is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.” Indeed, even if evolving mores are considered, they do not support a wholesale forced acceptance of same-sex marriage.

For all these reasons, the marriage laws at issue in this case are perfectly constitutional.

The challengers had also argued, however, that state laws banning recognition of out-of-state marriages violated constitutional guarantees of equal protection and due process.

The Constitution does not require inter-state recognition of same-sex marriages

The Court stated that (as explained above) because states may constitutionally define marriage between men and women as they see fit within their borders, they may also constitutionally define how they will recognize out of state marriages. States have always decided how and when they will recognize other states’ laws based on choice of law doctrines. This situation is no different. Indeed, states already for a long time have refused to recognize invalid out of state marriages in other contexts – like incestuous or polygamous marriages, or others opposed to state law. States may decide what marriages to recognize as a matter of policy in those contexts, and this one is no different. If there is no constitutional right forcing a state to modify its own marriage laws, there is no constitutional right forcing a state to modify its laws regarding recognition of marriages performed in other states.

The challengers also argued that such bans violate the constitutional right to travel – which protects the right to leave and enter states, be welcomed, and, if a permanent resident, be treated like a citizen of the state. Yet, as the Court noted, state laws banning recognition of out of state marriage violate none of these rules. People can still move freely across boundaries, and are treated just like those inside the state who would violate the marriage laws. Thus, the right to travel does not require invalidation of state marriage laws on this point.

Conclusion

For all these reasons (explained above and summarized below), the Court held that state laws upholding natural marriage are fully legal and constitutional:

  • Baker requires that this Court dismiss the constitutional rights claims here.
  • Even if not dismissed, these laws meet rational basis review. There is no animus or suspect classification which would require any greater review.
  • There is also no fundamental right here – explicitly protected or deserving to be recognized.
  • There is no original meaning or “evolving meaning” support for a same-sex marriage right which would change any of the above analyses.
  • Additionally, no legal principle changes the constitutional calculus regarding laws pertaining to recognition of out-of-state marriages.

Judge Sutton reiterated one final time that such sensitive issues, especially when considering the abrupt timeline of change and legalization of same-sex marriage, should be left to the voters to decide. Only then can voters on both sides of the issue makes their voices heard in a manner befitting them as ultimate arbiters in a self-governing democracy, as opposed to making judges the “heroes” (or villains) they were never meant to be.

Dissent

Dissenting Judge Daughtrey repeats all the same arguments advanced by the challengers – arguments which have been repeated elsewhere by rogue judges striking down marriage laws. She accuses the majority of setting up a “false premise” of “who should decide” this issue – the voters or judges. Perhaps she is grasping at straws, for this is not a false premise at all, but a legitimate question that is actually before the court – whether there actually is a right to same-sex marriage at all – which, if absent, indeed permits the voters to decide. For much of her opinion, she spends time on items not even central to the legal issues – she discusses the various factual scenarios of the challengers’ lives, then takes shots at the expert testimony offered by the defending states (without equally scrutinizing plaintiffs’ experts), and finally simply recounts other recent circuit court rulings (which themselves have been crafted out of thin air in the past year with specious reasoning).

She fails to confront the precedential hurdles she faces in Baker (which have been discussed by the majority). She also fails to even examine the proper standard for rational basis review – whether there is “any plausible reason” for traditional marriage. Instead, she just skips the question, choosing instead to complain about the majority’s arguments without engaging them, and without applying the appropriate legal standard. For instance, at one point, she focuses on the level of difficulty of amending a state constitution – a question entirely irrelevant to the legal standard she is supposed to be considering.

She then claims the voters could be exhibiting “animus” if they have a “general, ephemeral distrust of, of discomfort with, a particular group.” Under that standard, we might as well be forced to legitimize virtually every behavior for which we currently incarcerate people.

It goes without saying further that the dissent is poorly constructed and lacks objectivity. That alone would be sufficient reason to criticize it; the cheap shots which she takes at the judges in the majority (and to some extent the voters) further discredit the dissent.

Continue reading

Archives