For Immediate Release
July 6, 2015

Kenneth Chan





Supreme Sham

By Jerry A. Johnson, Ph.D., President and CEO of National Religious Broadcasters

This is the second of a three-part commentary on the Supreme Court decision in Obergefell v. Hodges.


Thinking about the recent Supreme Court ruling that forced “gay marriage” on all 50 states produces several reactions. As noted earlier, biblically and morally, it’s a shame. But legally and politically, it’s also a sham. Here’s why.

Authored by Justice Anthony Kennedy, the 5-4 majority opinion was based upon the notion that the federal government can overrule the states on marriage policy to impose same sex “marriage” nationwide.

So what makes this ruling a sham?

Read very carefully the quotes below from June 26’s marriage ruling. Remember that Justice Kennedy (joined by Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan, and Ruth Bader Ginsburg) ruled to impose a federal mandate of “homosexual marriage” on the states. However counterintuitive, here are shocking statements from these five Justices about federalizing “gay marriage” policy.

It seems impossible—Justice Kennedy and the majority make it clear that history and tradition actually leave marriage to the states: “By history and tradition the definition and regulation of marriage…has been treated as being within the authority and realm of the separate States.”

Kennedy, quoting Supreme Court precedent, documents that marriage belonged to the states before the Constitution, and afterwards the Constitution gave no authority over marriage to the federal government:

“(T)he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce…(and) the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906).

The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384 (1930).

Kennedy concludes that state authority over marriage has kept the federal government out of marriage, even when there might be a reason it could get involved:

In order to respect this principle (no federal domestic relations law), the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction.

Kennedy and the majority (Sotomayor, Breyer, Kagan, and Ginsburg) find that a federal law regulating marriage is unconstitutional because it “departs from this history and tradition of reliance on state law to define marriage.”

Wait a minute! Didn’t last month’s ruling mean the federal government was forcing the states to legalize “gay marriage?” It did. I may have misled you with the date June 26. The above quotations are from a previous “gay marriage” case on June 26, 2013—United States v. Windsor.

That’s right. Just two years ago to the date, these same five Justices made the opposite argument and it’s just one reason why the current ruling is a sham.

When the State of New York recognized a “same-sex marriage,” but the “marriage” was not acknowledged by the federal government because of the Defense of Marriage Act, these same five Justices ruled in favor of the homosexual litigants in 2013. Their argument as indicated above was clear. States, not the feds, have authoritative jurisdiction over marriage.

Before the ink was dry on that 2013 decision, James Obergefell filed a lawsuit when Ohio refused to recognize his out-of-state “marriage” on his late partner’s death certificate. The case went all the way to the U.S. Supreme Court and we see a startling about-face. Abracadabra! As if by magic, Justice Kennedy waves a rainbow wand and his loyal assistants pull a rabbit named Disappearing Ink out of a hat. What was constitutional two years ago (state authority over marriage) is unconstitutional now.

What made the difference? What made them change their argument 180 degrees? Those five Justices favored a public policy shift over the Constitution. They let their opinions, rather than the law, guide their decision. One thing is abundantly clear, even if difficult to write, or read. The “gay rights” cause, not the Constitution, was the controlling factor in both cases.

Chief Justice John Roberts dissented in the case, finding that the majority’s answer to the question of whether the Constitution required states to allow same-sex marriage was “based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’” He firmly stated:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.

In other words, it’s a sham.

Why do I say it’s a sham? Justices are supposed to rule according to the Constitution, not personal opinion or policy preference. When they obviously don’t, call it what it is: a sham.

We have seen bogus rulings before. Ultimately they cannot and must not stand. Take heart. Supreme Court decisions have been overturned by subsequent Supreme Court rulings over one hundred times, and reversed by constitutional amendments six times.

The infamous Dred Scott decision of 1857 is a prime example. Holding an act of Congress unconstitutional, the Court said African Americans could not be citizens and it consequently perpetuated slavery. Chief Justice Roger Brooke Taney thought it would settle the slave question. Instead, it was a catalyst for the Civil War, then upended by the Civil Rights Act of 1866, and finally nullified by the Fourteenth Amendment. Later Chief Justice C.E. Hughes called Dred Scott the Court’s “greatest self inflicted wound.”  Like Dred Scott and slavery, Obergefell forcing “gay marriage” on the states can never be right for America, because it is wrong. Sooner or later, even if much later, like Roe v. Wade it will have to go.

Of course the other side, and some well-meaning friends on our side, emphasize that this ruling comes down from on high by the Supreme Court. “It is the law.” “It is settled.” You must not call it a sham.

But it is a sham. Again, the facts are clear. The Court is not authoritative over the Constitution. Supreme Court decisions are legitimate only if they are in fact made in accordance with the Constitution.

The dissenting opinions in Obergefell are clear and blistering on this point. Everyone should read them in full. In short, here are some devastating quotations:

But do not celebrate the Constitution. It had nothing to do with it.
- Chief Justice Roberts

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.
- Justice Clarence Thomas

Today’s decision usurps the constitutional right of the people….
- Justice Samuel Alito

[T]he court ends this debate, in an opinion lacking even a thin veneer of law.
- Justice Antonin Scalia

“Sham” is strong language when talking about the Supreme Court. But let’s make a comparison. We were disappointed when President Barack Obama reversed his marriage position as he stated it seven years ago:

I believe that marriage is the union between a man and a woman. Now, for me as a Christian, it’s also a sacred union. God’s in the mix.

Now you see it, now you don’t. Like the magic of the Court’s majority, now we see the President send his Solicitor General to argue for the same-sex litigants at the Supreme Court. Now we hear the President commend the decision and see him celebrate it by “flying the colors” of the movement with a rainbow light show at the White House.  We read the book by his former top political aide, David Axelrod, who says the President lied (yes, even CNN used this word) all along about his position on “gay marriage” just to win elections. We are disappointed to see this deception from a President who many hoped could bring the country together. But we have seen politicians “evolve” before and now we have seen another do the same.

But this is not how America views the Supreme Court. Justices wear black robes. They are appointed for life. They are above politics. They won’t reveal their personal political views in confirmation hearings, even though they are asked, because they pledge to rule objectively based on the Constitution.

But sadly, now we know better, at least about five Justices of this Court. We see it in the hypocritical reversal by the majority, in just two years, on whether states have jurisdiction over marriage. We see it in the very language of the majority opinion, which is based on a therapeutic, rather than legal, argument. With clarity and conviction, it is confirmed by the Chief Justice and the other dissenting members of the Court. We also see it because Justices Ginsburg and Kagan refused to recuse themselves from ruling on this case, in violation of the Court’s code of conduct, even though they both had officiated “gay weddings.” This was a sham show all the way. To pretend otherwise is foolish, POTUS pomp and SCOTUS circumstance notwithstanding.

I want to say that this Imperial Court has no clothes, but those black robes ruin the idiom.  What does ring true is that almost no one actually believes anymore that the Supreme Court is objective, but everyone pretends that everyone believes it. This reminds me of Malcolm Muggeridge, who once explained why professors wear academic regalia. They do it to hide the corruption and lack of substance underneath.

It is time for this Supreme Court to stop the sham pretense of objectivity or adherence to the Constitution and return to the rule of law, not of opinions. If not, these Justices should trade their judicial garb for that of a typical politician, setting aside their robes for business suits. If their outfits match their politics, we should not be surprised to find the majority - along with other politicians celebrating Obergefell - dressed in red, orange, yellow, green, blue, and violet.

This three-part commentary will continue next week. Part 3: “Supreme Shambles” will cover practical considerations. Click here to read Part 1: "Supreme Shame."

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