Printed letters, June 28, 2013

Apparently with The Daily Sentinel’s endorsement (“Update the rules of racial preference”), our Supreme Court has disingenuously reinjected partisan judicial activism into its anti-democratic interpretations of our Constitution by striking down Section 4 of the Voting Rights Act of 1965.

In Bush v. Gore (2000), the 5-4 majority turned familiar “equal protection” analysis on its head by stopping recounts in Florida counties using different vote-counting procedures — a practical reality inherent in our decentralized election system.

In Citizens United (2010), the 5-4 majority naively underestimated the impacts of both unlimited and anonymous political spending on the integrity of elections — by relying on dubious precedents to rule that “money” is “speech” protected by the free speech clause of the First Amendment (rather than “property” subject to reasonable regulation) and that corporations are living “persons” entitled to First Amendment protections (rather than artificially created legal entities with limited privileges defined by statute).

In this week’s Shelby County v. Holder, Chief Justice Roberts’ opinion for the 5-4 majority ignored — by making no reference to — the plain language of Article I, Section 4: “The ... Manner of holding Elections ... shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

Thus, our Constitution expressly empowers Congress to selectively override “principles of Federalism” (or “states rights”). In 2006, Congress compiled an 1,800-page record documenting ongoing race-based election abuses, which justified its nearly unanimous renewal and extension of the Voting Rights Act.

Thus, even if Section 4’s outdated “formula” can no longer be constitutionally used to treat states “unequally” or to add jurisdictions to those already covered by Section 5’s “preclearance” provisions, their renewal at least ratified the then-existing coverage map — without regard to any “formula.”


Grand Junction

DOMA decision shows court 
is divorced from God’s law

The Supreme Court majority, by its Wednesday decision, announced again that it is divorced from the fundamental law — “religion, morality and knowledge being necessary to good government and the happiness of mankind,” according to Article III in the twice-passed Northwest Ordinance.

Likewise the majority ignored the precedent of Murphy v. Ramsey (1885), which rightly defined marriage as the union between a man and a woman in the Holy Estate of Matrimony.

I can recall the late Robert H. Bork writing in “The Tempting of America” that “when Constitutional Law is judge-made, and not rooted in the text or structure of the Constitution, it does not approach illegitimacy, it is illegitimate, root and branch.”

Reading the legal summary of the court’s decision on the Defense of Marriage Act — and finding Justice Scalia’s dissent resonated as more reasoned than anything in the majority opinion — I am reminded of the legal defense of Peter and the other apostles before the Temple Court. “We ought to obey God, not man.” (Acts 5:29).

The Magdeburg Confession of April 1550, in response to the Augsburg Interim by the Holy Roman Emperor, Charles V; “On the right to Rebel Against Governors,” a sermon by Samuel West in 1776: and similar political sermons of the American founding era inspired laws and good government. Let’s not forget Grotius, Locke and Blackstone, as these European writers influenced our American system.

Marriage is, and will ever remain, the union of a man and a woman in the holy estate of matrimony. Anything else is not marriage. It may be fraud or an abomination, sinning, fornication and adultery or rebellion against God.

When the state (or its agent, the Supreme Court) makes law contrary to the laws dictated by God, it lacks authority. And I will obey God, not the state.




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Robert Burkholder’s Friday offering – “DOMA decision shows court is divorced from God’s law” – serves as a useful point of departure for analyzing the Supreme Court’s rationale for striking down the “one man, one woman” provision of the 1996 Defense of Marriage Act (“DOMA”).

First, as a matter of our law, because the Northwest Ordinance predated ratification of the Constitution, sentiments expressed in the former are subsumed in – and do not “trump”—the plain text of the latter, much less of the Fifth and Fourteenth Amendments.

Second, the Supreme Court’s 1885 definition of marriage in Murphy v. Ramsey as “the union of one man and one woman in the holy estate of matrimony” – with emphasis on the “one” – applied only to the statutory criminalization of polygamy.  Because that case did not address “same-sex marriage” at all, its dictum definition has no legal force today.

Third, since 1885, the federal government has increasingly utilized marital status as a convenient shorthand for conveying legal and financial benefits to spouses under civil law – presumably, to promote the stability of family units. 

More recently, some religious denominations have realized that same-sex couples are not biblically excluded from “the holy estate of matrimony”, and that the “Golden Rule” does not countenance discriminatory denigration of god’s LBGT children.  Meanwhile, several states have recognized that “gays” also form stable families worthy of taxpayer support.

Thus, in United States v. Windsor, the Supreme Court rejected DOMA’s dated definition of marriage, first, because – absent evidence of “injury”—“traditional marriage” requires no “defense” (even though House Republicans wasted $28 million justifying imaginary “harms”), and, second, because—even though Burkholder, private religious groups, and the states remain free to embrace a religious ideal of marriage – the federal government cannot constitutionally deny equal civil benefits to any legally married same-sex couples.

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