FRC Blog

Supreme Chaos

by Rob Schwarzwalder

June 30, 2015

Last week, the Supreme Court overturned the votes of more than 50 million people in 31 states concerning same-sex marriage, finding, instead, a constitutional “right” for same-gendered persons to marry. They blithely dismissed the will of the voters in order to find this “right,” rejecting the Tenth Amendment’s affirmation that those things not specifically articulated in the Constitution as within the province of the federal government belong to the states and the people.

In a ruling on the shaping of congressional districts, issued today, Justice Ruth Bader Ginsburg – a leading advocate of a constitutional “right” for same-sex partners to marry – wrote the following: “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”

Affirming federalism is not a matter of whim; it is foundational to our system of government, even our existence as a nation. Yet, troublingly, this subjective application of the Founder’s political philosophy seems to be the pattern of our current Supreme Court.

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Internal Chinese Populations

by Chris Gacek

June 29, 2015

China is now a world power, and we at the Family Research Council have commented on the brutality and inhumanity of its “one child” policy for years.  An excellent, recent article made clear that China’s severe population control policies exist on many levels – not just abortion.  Their harshness, however, puts the forced abortion diktat in a broader context of disregard for human beings.

The important Weekend Financial Times article (4/30/2015) by Jamil Anderline entitled, “China’s Great Migration.”  The focus of the story is a woman named Xiang Ju and the trek she makes from [x] to her rural homeland in China to celebrate the Chinese lunar New Year.  Along the way, Anderline fills in some basic facts about Chinese life – that are unknown to almost all Americans (I believe):

Not that Xiang Ju cares. She is about to join an annual ritual that is not only the biggest human migration but probably the biggest mammalian migration on earth each year. In 2015, an estimated 170 million people caught trains or flights out of China’s biggest cities heading home for the lunar New Year. The government counted about 3 billion “passenger trips” nationwide during the 40-day travel rush, including cars and buses.

Like Xiang Ju, most of these people were born and raised as peasant farmers in the countryside and later moved to China’s megacities to work in low-paid manufacturing, construction and service jobs. In 1978, on the eve of economic reforms that first unleashed this flood of humanity, less than 20 per cent of China’s population lived in a city. Today, 55 per cent of people in the world’s most populous country live in urban areas.

But about 275 million, or more than a third of China’s entire labour force, are migrant workers from the countryside, without the right to settle permanently or access the education, pensions or healthcare provided to those with hereditary “urban” status.

That last paragraph is stunning.  A population approaching 300 million constitute internal Chinese migrants who, merely because the moved out of the countryside, have limited access to numerous social services in some sort of irrational federalism.  Furthermore, they are not entitled to live in their new home cities.

And, at the other end of the spectrum, there is the phenomena of “hot money” by Chinese super-elites buying overseas real estate, including the U.S., as fear of the Xi government’s crackdown grows.  Go to the podcast page, and start listening at 19:00 (Jamil Anderlini / FT.com interview by John Batchelor and Gordon Chang).  Apparently, having more children than is allowed by the government is a status symbol among the Chinese elites who maintain overseas residences.

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Four Short Observations about Justice Kennedy’s Opinion on Same-Sex Unions

by Rob Schwarzwalder

June 26, 2015

Homosexuality is an “Immutable” Characteristic

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.  And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Opinion of the Court, p. 4

Wrong: Homosexuality is NOT an immutable characteristic.  This is documented copiously and is demonstrated anecdotally by everyone from Rosaria Butterfield to Chirlane McCray, the wife of New York Mayor Bill DeBlasio.

As reported in an amicus brief for the Family Research Council, an examination of just some of the complaints that have been brought to date challenging state marriage laws reveals that dozens of the plaintiffs seeking to marry someone of the same sex previously were married to someone of the opposite sex. Notwithstanding their (presumed) sexual orientation, they were issued a license to marry. It might be argued that at the time of their previous marriage, they were not homosexual. But that response creates a new problem. If they were heterosexual then, but are homosexual now, then their sexual orientation could not be said to be immutable. – FRC Senior Fellow Peter Sprigg, The Wrong Argument Against Traditional Marriage, April 27, 2015

Changing Understandings of Marriage”

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.  For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman … Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” Opinion of the Court, pp. 6-7

Wrong: The nature of marriage as the union of one man and one woman has never changed. Legal matters attendant to marriage (women’s property rights, arrangements by parents, etc.) have changed, but the nature of marriage has itself never changed.  Kennedy’s argument says, in essence, that because a car now has airbags, it should be called an airplane.  Incorrect: It remains a car, even if improvements have been made to its engine, its safety, etc.

These aspects of marriage—the complementarity of male and female, and the irreplaceable role of male-female relations in reproducing the human race—are part of the original order of creation, and are evident to all human beings from the enduring order of nature. These common elements of marriage are at the heart of our civil laws defining and regulating marriage. Therefore, people of all cultures and religions—including those who lack faith in God, Christ, or the Bible—are capable of participating in the institution of marriage. – Andreas Kostenberger, Ph.D., “The Bible’s Teaching on Marriage and Family”

Homosexuality is analogous to race

When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.  Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.  In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men’.” Opinion of the Court, p. 8

Wrong: Race is immutable and benign.  It is irrelevant to with one’s character or conduct.  Homosexuality is not immutable and those who practice same-sex intimacy are engaging in behavior that has intrinsic moral content.

One of the four criteria for defining a classification such as sexual orientation as suspect—which in turn subjects laws targeting that class of people to the highest burden of proof—is that the group in question share an immutable characteristic. The immutability of sexual orientation is hardly a settled matter—just ask Anne Heche (the former partner of celebrity and lesbian Ellen DeGeneres who has now affirmed her heterosexuality). - Margaret Talbot, “Is Sexuality Immutable?” The New Yorker, January 25, 2010

Marriage is a matter of “individual autonomy”

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Opinion of the Court, p. 13

Wrong: While individual autonomy in terms of “personal choice” is “inherent in the concept” of marriage, marriage is not strictly about personal volition.  It is a social institution designed for procreation and child-rearing in a complementary household in which a child benefits from the influence of differently-gendered parents.

Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a mother and a father. Redefining marriage does not simply expand the existing understanding of marriage; it rejects these truths. Marriage is society’s least restrictive means of ensuring the well-being of children. By encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role. The future of this country depends on the future of marriage. – Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It”, Heritage Foundation, March 11, 2013

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Overview of Obergefell v. Hodges: Supreme Court Discards Voters’ Views on Marriage

by Travis Weber

June 26, 2015

In a 5-4 opinion, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize licenses issued by other states. The decision was based on the due process and equal protection provisions of the Fourteenth Amendment.

There are two over-arching errors in this decision.

First, in reading this right into the Constitution, the Court played social policy maker instead of judge. This issue should have been left to the states, but the Court chose instead to make extensive pronouncements of social policy and create a right to same sex marriage under the Constitution.

Second, the Court overlooks huge logical gaps throughout its use of precedent and case law. All of the marriage decisions the majority relies on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To claim all those decisions contemplated such relationships as constitutionally protected marriages is an incredible leap in legal reasoning. However, it is more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (Justice Kennedy stated the institution of marriage “has evolved over time). The Court arrives at its conclusion here by viewing marriage as simply whatever man says it is; once its reasoning is divorced from God’s authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.

If there is a silver lining to the ruling, it is that because this ruling is heavily based on due process grounds, and focused less on equal protection (and avoiding animus entirely), there could be more leeway to protect religious freedom when regulating matters related to same sex marriage.

Majority Opinion

In the majority opinion, authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court relies on its own view and judgment of the history of marriage, along with legal validation of gay rights in Bowers and Lawrence, and subsequent more recent cases, as purported precedent for its decision.

In an attempt to legitimize its reasoning and conclusions, the Court makes many social science pronouncements on marriage—such as “new insights have strengthened, not weakened, the institution of marriage” and “many persons did not deem homosexuals to have dignity in their own distinct identity.” Regardless of their accuracy, the Court has no authority or expertise to make such claims.

At one point, Justice Kennedy claims the petitioners did not intend to denigrate natural marriage. The problem is, whether they intend to or not, disrupting marriage as God intends it will eventually lead to its destruction.

Due Process

The Court first held that Fourteenth Amendment substantive due process protections required states to license same-sex marriage. In the Court’s view, this right extends to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Which rights are protected by substantive due process “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect… . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.”

The Court starts by recognizing that it has long protected the “right to marry”—relying on rulings in the racial, child support, and prison contexts. The Court recognized that none of these dealt with same sex marriage, and attempts to excuse itself: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”

At one point (which is lacking airtight reasoning), the Court basically acknowledges it is recognizing this right for the first time—yet marginalizes Glucksburg, the case governing recognition of due process rights—and proceeds to rely on four reasons for doing so:

(1)   “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy” (citing the racial, child support, and prison context). “Choices about marriage shape an individual’s destiny.” “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

(2)   Relying on Griswold, the Court claims: “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”

(3)   “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

(4)   “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

Ironically, Justice Kennedy’s third point is precisely why children need a mom and a dad. The Court here relies on Pierce, a case which by no means contemplated that marriage could be anything other. And his fourth point is exactly why marriage is between a man and a woman. Calling it anything other reveals how when officials (including judges) depart from an understanding of what higher law and natural law say about mankind, their reasoning goes astray.

Throughout the majority opinion, the Court makes social pronouncements it has no authority to make. And none of the cases it relies on ever contemplated that marriage could be anything but between a man and a woman. Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ Marriage, the Maynard Court said, has long been ‘a great public institution, giving character to our whole civil polity.’”

Does Justice Kennedy sincerely believe that the Maynard Court, which he quotes, contemplated its holding as applying to marriages besides those between men and women? Or that that Court would view such marriages as helpful to the “social order?” Yet he proceeds to claim “[t]here is no difference between same- and opposite-sex couples with respect to [the] principle” that marriage plays an important part in the “social order.”

Equal Protection

The Court next held that the state laws at issue also violated the Fourteenth Amendment’s equal protection provision. In its earlier marriage cases, the Court asserts, equal protection and due process grounds had been intertwined. The Court attempts to show that due process and equal protection also intertwine to protect same sex marriage in this case. The equal protection grounds are less clear and do not feature as prominently as the due process arguments in the majority opinion. At this point, the Court also expressly overruled Baker.

In his opinion, Justice Kennedy acknowledged his recent pro-democracy thinking in Schuette, but (unfortunately) did not decide to heed it:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id.,at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id.,at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”

Why, then, did Justice Kennedy decide as he did here? In essence, he appears to feel differently about private sexual matters compared to other issues; this is evident in his consideration of Bowers and Lawrence, which he discusses here. Thus, the Court denied its own reasoning (indeed, Justice Kennedy denied his own reasoning) from the Schuette case.

Justice Kennedy decides that same sex marriage will not harm natural marriage, and ends with another policy pronouncement:

Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court concludes that its reasoning requiring states to license same sex marriages would undermine any opposition to recognizing such marriages from out of state. Thus, the Court held that states must issue same sex marriage licenses and must recognize same sex marriages performed in other states.

Here, the Court’s thinking again reveals an approach to marriage that only appears more logical (if at all) when God is removed from the picture, and is evidenced by such statements as: “It would misunderstand these men and women [the petitioners] to say they disrespect the idea of marriage.” Unfortunately, the truth that this reasoning harms marriage by removing its Author from the picture whether or not people intend to was missed here.

The Court does briefly address religious liberty concerns:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

While this recognition of religious liberty protections is better than nothing, it does not accurately capture a satisfactory vision of how religious liberty should be (or even currently is) constitutionally or statutorily protected. Several dissenting Justices make similar observations.

Dissenting Opinion by Chief Justice Roberts

Chief Justice Roberts wrote a dissenting opinion (joined by Justices Scalia and Thomas), noting that the majority ruling was a policy decision, not a legal decision. He observes that the changes in marriage laws over time (while changing the regulation of marriage in some respects) did not, as the majority claims, alter the “structure” of marriage as between a man and a woman.

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”

He aptly pointed to Dred Scott as an example of when the Court’s view on substantive due process got out of hand and is now viewed with distain many years later.

The Chief also recognizes that the majority’s claim that marriage is restricted to “two” people just can’t logically hold up under its own reasoning, and could easily be extended to plural marriage:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

He continues:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”

Chief Justice Roberts then quotes Schuette, and notes that although there is still a losing side in a democratic debate, at least those people will know “that they have had their say,” unlike here, where the court has disenfranchised over 50 million Americans.

He also recognizes religious liberty issues which may arise:

Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage… . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”

There is more:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

The Chief then takes issue with the majority’s statement that laws supporting natural marriage are demeaning; he does not like the majority’s implication that those supporting such laws wish to demean anyone. He concludes that “while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”

Dissenting Opinion by Justice Scalia

Justice Scalia also dissents (joined by Justice Thomas) and accuses the majority of legislating, not judging.

He aptly points out that the Windsor majority blatantly contradicts itself today:

It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

Justice Scalia concludes with a warning:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Dissenting Opinion by Justice Thomas

Justice Thomas also dissents (joined by Justice Scalia), noting the danger (as evidenced today) of substantive due process doctrine—by which rights “come into being” under the Fourteenth Amendment. He argues the Framers recognized no “right” to have the state recognize same sex relationships; there is no liberty to government benefits, just liberty from adverse government action.

He continued by focusing on the threat to religious liberty this decision represents, recognizing that while this ruling may change governmental recognition of marriage, it “cannot change” the religious nature of marriage. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

Justice Thomas also points out the problems with the majority’s conception of religious liberty:

Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ … Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”

Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”

Dissenting Opinion by Justice Alito

Justice Alito also dissented (joined by Justices Scalia and Thomas), arguing that the Court’s decision is based on a flawed understanding of what marriage is, and that it takes the decision out of the hands of the people who have the authority to decide it.

He also believes this decision threatens religious liberty:

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women… . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected… . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Justice Alito recognizes that the Court now makes it impossible for states to consider how to legislatively protect conscience rights should they want to do that while at the same time legislatively authorizing same sex marriage.

He concludes:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.”

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Conservatives Committed to Preserving Traditional Marriage

by FRC Media Office

June 26, 2015

Today, Republican Study Committee (RSC) Chairman Bill Flores (R-TX) released the following statement in response to the U.S. Supreme Court’s ruling in Obergefell v. Hodges:
 
“Today the Supreme Court overstepped its authority in another unfortunate display of judicial activism. With the Constitution silent on the question of marriage, this issue should be decided by the American people – not an activist Court. Millions of Americans have voted to preserve traditional marriage, with the knowledge that moms and dads raising kids in a stable home is essential to healthy communities and a healthy nation. I remain committed to restoring the right of Americans to decide this question for themselves, at the ballot box or through their state legislature. The first step is protecting the rights of religious organizations and schools to live according to their beliefs without facing retribution from the federal government.” 

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Senate Values Action Team Responds to SCOTUS Marriage Decision

by FRC Media Office

June 26, 2015

Senate Values Action Team:

In response to today’s Supreme Court decision in Obergefell v. Hodges, please see Senate VAT leaders’ comments below:

Senator Blunt:  “I’m disappointed in this decision.  My view is that family issues in Missouri like marriage, divorce, and adoption should be decided by the people of Missouri.”

Senator Scott:  “I continue to believe that marriage is between one man and one woman. The Supreme Court’s overreach into decisions that should be made by states and the people living and voting in them is disappointing. Moving forward, we must ensure families and religious institutions across America are not punished for exercising their right to their own personal beliefs regarding the traditional definition of marriage.”

Senator Ernst:  “I am disappointed by the Supreme Court’s decision and its failure to recognize the freedom of our states to make their own decisions about their respective marriage laws.  While it is my personal belief that marriage is between one man and one woman, I maintain that this is an issue best handled at the state level.”

Senator Lankford:  “I am disappointed with today’s ruling on marriage. During oral arguments the Court stated that there is a millennia of history for traditional marriage and that the issue has historically been decided by the people, not the courts. Two years ago, the Supreme Court even ruled that marriage policy is a state issue, but today they reversed themselves and redefined marriage over the objection of millions of people.   

Just like there remains a diversity of opinion on abortion, decades after Roe v. Wade, there will remain strong opinions on marriage long past today’s decision. Many Americans believe marriage is between a man and a woman, and we need to celebrate marriage as the best way to provide stability for children. For people who live by the clear teaching of many different faith traditions and people who simply believe in the sanctity of marriage, it is essential that their views are respected. As President Obama has said there are good people on both sides of the issue. After the ruling, the President was right to call the nation to respect and revere our nation’s ‘deep commitment to religious freedom.’ We should all be able to agree that everyone deserves the right to live out their religious convictions.

I believe each person is created in the image of God and has value and worth; every person should be respected. That belief defines my respect for people as individuals but it also sets a standard that will not change with a Supreme Court decision. Now the Courts will be required to also stand for the First Amendment of the Constitution and the faith traditions of millions of Americans.”

Justice Anthony Kennedy acknowledged the importance of religious freedom in the written decision. Kennedy wrote, “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

After the Supreme Court announcement during a press conference at the White House, President Obama said, “I know that Americans of good will continue to hold a wide range of views on this issue. Opposition in some cases has been based on sincere and deeply held beliefs. All of us who welcomed today’s news should be mindful of that fact. Recognize different viewpoints. Revere our deep commitment to religious freedom.”

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Supreme Court’s Marriage Ruling is Shocking Abuse of Power, Will Never Be Accepted

by FRC Media Office

June 26, 2015

WASHINGTON, D.C.– Family Research Council (FRC) President Tony Perkins responded today to the U.S. Supreme Court’s decision forcing the people in all 50 states to embrace same-sex “marriage,”  regardless of their votes to define marriage in their states as a man-woman institution.

Of the decision FRC President Tony Perkins said:

Five justices on the Supreme Court have overturned the votes of 50 million Americans and demanded that the American people walk away from millennia of history and the reality of human nature.

In reaching a decision so lacking in foundation in the text of the Constitution, in our history, and in our traditions, the Court has done serious damage to its own legitimacy.

 “No court can overturn natural law.  Nature and Nature’s God, hailed by the signers of our Declaration of Independence as the very source of law, cannot be usurped by the edict of a court, even the United States Supreme Court. 

Marriage is rooted not only in human history, but also in the biological and social reality that children are created by, and do best when raised by, a mother and a father. No court ruling can alter this truth.

It is folly for the Court to think that it has resolved a controversial issue of public policy. By disenfranchising 50 million Americans, the Court has instead supercharged this issue.

Just as with Roe v. Wade in 1973, the courts will not have the final say on this profound social matter.  The American people will stand up for their right to have a voice and a vote, especially as they experience the ways in which redefining marriage fundamentally impairs their freedom to live and work in accordance with their beliefs.

With this ruling, the Supreme Court has set our government on a collision course with America’s cherished religious freedoms, explicitly guaranteed in the First Amendment of the Constitution. 

Americans will not stop standing for transcendent truth, nor accept the legitimacy of this decision.  Truth is not decided by polls or the passage of time, but by the One who created time and everything that exists therein. 

We will not lapse into silence but will continue to speak uncompromisingly for the truth about what marriage is, always has been, and always will be: the union of one man and one woman,” concluded Perkins.

Family Research Council’s amicus brief in this case can be found here.

 

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Roberts Rules of Obamacare

by David Christensen

June 26, 2015

Justice Roberts’s majority opinion in King v. Burwell stretches the idea of textual interpretation well beyond the idea of using context to understand terms. He interpreted “Exchange established by a State” to mean “any Exchange” including a federally created one, but he did so not based on various other texts of the law, but what his understanding of the “purpose” of the law was. This is a blatant misuse of policy to interpret the text. In his first ruling on Obamacare, he interpreted “penalty” to mean “tax” even though both were clearly distinguished in the law. Now according to Roberts and the majority, “established by a State” means “established by a state or the federal government”. He concluded that Congress as a policy matter did not intend to restrict subsidies for health care plans in states created by the federal government since that would cause a “death spiral”. But why not interpret the policy decision, based on the text of the law, to have created an incentive for states to create their own exchanges? But those questions and the answers to them are matters of policy, not legal or textual interpretation. Roberts wanted to salvage Obamacare, and interpreted the law to fit his understanding of its policy goals. This ad hoc approach to textual interpretation undermines the idea that Roberts is conservative as it relates to his judicial mindset, but worse, how is Congress ever to draft legislation and pass laws when they themselves won’t know how the court will rule based on how they actually write the law? That’s quite a problem for the future of our democracy. Worth reading is the WSJ editorial “The Political John Roberts” pointing out that the Chief rewrote the law “in order to save it.”

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Supreme Court Coddles Congress on Obamacare

by Travis Weber

June 25, 2015

In an opinion which deals a heavy blow to our foundational separation of powers, the Supreme Court ruled 6-3 today in King v. Burwell that the federal government could give out Affordable Care Act tax credits on its own health insurance exchange if a state did not set one up. Why? According to the Court, incredibly, the statutory term “established by the state” actually means “established by the state or the federal government.”

In the majority opinion, written by Chief Justice Roberts and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan opinion, the Court basically saves Congress from its own bad handiwork, scrutinizing and considering how the law would fail to work if it ruled on the plain meaning of the statute. In doing so, it illustrates how courts are not supposed to act — as legislator (considering the policy implications of a decision) as opposed to how they should — as judge (ruling on what the law means).

The trouble begins when the Court decides “established by the state” can’t just mean “state,” but must mean more given the “context and structure of the Act.” Because, in the Court’s view, this term has been deemed “ambiguous,” it is compelled “to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Once the provision is considered “ambiguous,” the Court is left free to jump through all sorts of hoops to reach its desired conclusion. It fruitlessly cautions: “Reliance on context and structure in statutory interpretation is a ‘subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.’” I don’t know how the Court has avoided doing that here.

The Court’s mental machinations continue; it claims that while “‘the presumption of consistent usage readily yields to context,’ … a statutory term may mean different things in different places.”

After declining to apply a method of statutory interpretation that says words should not be construed to be mere rhetorical surplus, the Court had to admit the ACA is the type of muddled mess that should have encouraged the Court to have less confidence in its ability to “figure it out” and instead send it back to Congress for fixing, noting that “with respect to this Act, rigorous application of the canon [against surplus words] does not seem a particularly useful guide to a fair construction of the statute.”

Why? Even the pro-ACA majority recognizes that “[t]he Affordable Care Act contains more than a few examples of inartful drafting… . Several features of the Act’s passage contributed to that unfortunate reality.” The majority further notes that the law “does not reflect the type of care and deliberation that one might expect of such significant legislation.”

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Planned Parenthood: Abortion Numbers Up, Other Services Down

by Arina Grossu

June 25, 2015

Americans United for Life (AUL) has released its fourth report in a series of exposés of Planned Parenthood (PPFA).  This report details PPFA’s expansion strategy of building new mega-centers for abortions and how PPFA’s increased focus is on abortion. 

A striking chart shows that from 2006 to 2013, the number of abortions performed by PPFA has gone up while cancer screening and preventative services have gone down by more than 50 percent.   Since 2004, mega-centers have opened in at least 19 cities and with them abortions have gone up nationwide by more than 70,000 abortions annually.

Think of these Planned Parenthood mega-centers as “abortion Wal-Marts.”  Where they open, the smaller abortion centers shut down, and Planned Parenthood gets a bigger piece of the abortion industry pie.  From 2004 to 2011, Planned Parenthood went from performing 20 percent to more than 32 percent of all abortions in the United States.

The abortion market might be in at a decline everywhere else, but at Planned Parenthood, “business” is good.

Yet taxpayer money continues to be handed over to America’s #1 abortion provider.  PPFA rakes in more than $500 million annually from taxpayer funds; this composes more than 40 percent of its overall revenue.

FRC’s Planned Parenthood factsheet also reveals that not only has Planned Parenthood decreased its cancer screening and preventative programs, but it also has decreased adoption referrals.  Comparing 2011 and 2013, the likelihood of a woman getting an abortion rather than an adoption referral at a Planned Parenthood increased from 145 times to 174 times.  From 2011 to 2013, adoption referrals decreased by 18 percent. In addition, from 2009 to 2013, prenatal services steadily decreased and dropped by more than half, and breast exams consistently decreased and dropped by a total of 41 percent.

So what exactly is Planned Parenthood doing besides building mega-centers and ending the lives of developing babies?  Apparently, increasingly little else.

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