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Re: Houston’s Harassment of Pastors


According to the WSJ Blog, as Houston’s mayor tries to back away from the massively overbroad subpoenas,* Houston’s city attorney maintains that it’s still somehow proper to obtain the pastors’ communications (including sermons) “related to the [referendum] petition process”:

Houston City Attorney David Feldman suggested to the Houston Chronicle in a story published Tuesday [registration req’d] that the documents demanded by the city could shed light on the extent to which signature gatherers opposing the ordinance were aware of the rules governing the referendum process.

Reports the Chronicle:

Feldman said the pastors made their sermons relevant to the case by using the pulpit to do political organizing. That included encouraging congregation members to sign petitions and help gather signatures for equal rights ordinance foes, who largely take issue with the rights extended to gay and transgender residents.

The city attorney’s statements make no sense to me. First, either the signature gatherers complied with the rules or they didn’t. What they “were aware of” is irrelevant to that question. Second, I don’t see anything in the referendum rules that bars pastors from “encouraging members to sign petitions and help gather signatures.” (If I’m missing something, I invite correction.) So I don’t see how any of the pastors’ communications relating to the referendum petition process might be thought to be relevant to (or to lead to anything relevant to) anything in the ligitation.

* Update: I now see that the mayor and the city attorney are on the same wrong page. Via Twitter, Mayor Annise Parker writes“If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-[ordinance] petition?”​

Houston’s Harassment of Pastors


In an extraordinary step, the city of Houston is seeking to compel pastors to provide all documents in their possession—including all sermons as well as “emails, instant messages, text messages,” and other electronic data—relating in any way to Houston’s recently enacted “equal rights” ordinance. (The full text of one of Houston’s subpoenas is available here.) Among other things, that ordinance entitles men who think they’re women to use women’s restrooms.

After the ordinance was enacted, voters exercised their right to seek to repeal the ordinance through a referendum. They obtained the signatures for a referendum petition and presented it to the city secretary, who certified it as valid. But Houston’s mayor and city attorney rejected the petition. Voters then sued to challenge the rejection. It’s in this action—to which the pastors are not parties—that Houston is serving the subpoenas on the pastors.

The Houston subpoenas are grossly overbroad, for the reasons that the Alliance Defending Freedom, counsel to the pastors, spells out in its motion to quash (and that Eugene Volokh addresses in point 2 of his post). As ADF puts it:

[I]t appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.

Two other factors appear to be at work. The first is the clash between the transgender ideology and religious liberty. Mark Steyn sums it up aptly:

When the transgendered bathroom ordinance runs up against the First Amendment, it’s the First Amendment that gets left for roadkill.

The second factor, I’d suggest, is the scorched-earth litigation strategy of so many modern law firms. Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of the law firm of Susman Godfrey are representing the city of Houston, and they seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. I would say that they are a disgrace to the legal profession, but I fear that they are all too typical of it.


This Day in Liberal Judicial Activism—October 15


1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure. 

Re: Somewhat Higher Than One in 7.87 Trillion


A follow-up to my post highlighting concerns about Judge Reinhardt’s seemingly non-random assignment to Ninth Circuit cases:

This Texas Law Review article from 2000, titled “Neutral Assignment of Judges at the Court of Appeals,” makes a compelling argument that Fifth Circuit case assignments in civil-rights cases in the early 1960s were manipulated in order to ensure pro-civil rights majorities. (I learned of the article from the en banc petition that has been filed.)

The article also surveys assignment systems in the federal courts of appeals as of 2000 and concludes that “all systems permit a certain level of discretion and human intervention that, in the wrong circumstances, could be abused.” With respect to the Ninth Circuit in particular, the article observes that, rather than enforce a strict separation between the panel and case assignment processes, the Ninth Circuit clerk’s office “runs the [computer] program assigning both judges and cases.” The article faults those courts, like the Ninth Circuit, that seem to think that “the increased use of computer programs to assign cases” makes separation of the processes unimportant. It sets forth what its authors regard as the essential elements of a neutral assignment system.

(I don’t know what system the Ninth Circuit currently uses.)

Somewhat Higher Than One in 7.87 Trillion


Josh Blackman reports that an attorney for a group defending the marriage laws of Nevada and Idaho has filed a petition for rehearing en banc in the Ninth Circuit that alleges that the “appearance is strong and inescapable that the assignment of this case to this three-judge panel was not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Law professor Derek Muller calculates at roughly one in 1,000 the odds that any single active judge on the Ninth Circuit would be randomly assigned to all three recent Ninth Circuit panels involving challenges to marriage laws and/or alleged sexual-orientation discrimination. But Reinhardt did indeed sit on all three (yes, even the case in which the ACLU affiliate that his wife led had taken part and in which she had publicly “rejoice[d]” over the district-court decision that Reinhardt would be reviewing).

Reinhardt’s seeming luck isn’t limited to these three cases. Concerns have circulated for years among conservative judges on the Ninth Circuit about Reinhardt’s amazing propensity to be selected to sit on important cases with a strong ideological valence. (You’ll find some of the cases here.) I’ll leave it to an advanced statistician to try to figure out the odds that random assignment would place Reinhardt on all of the larger set of cases. Perhaps it wouldn’t reach one in 7.87 trillion—the odds (according to DNA analysis) that someone other than Bill Clinton was responsible for messing up Monica Lewinsky’s blue dress—but I’m confident that it would be incredibly low.

I’m strongly inclined to wonder whether nefarious hijinks in the Ninth Circuit clerk’s office in San Francisco, rather than sheer luck, would explain the phenomenon. The clerk’s office could dispel such concerns if it disclosed any safeguards that it deploys to protect against such an abuse.

[Note: About ten minutes after my initial posting, I deleted a sentence from the second paragraph that I decided mispresented the odds.]


D.C. Event on Marriage and Religious Liberty


Next Tuesday, October 21, I will be speaking on the topic “What’s Happening at the Supreme Court? The Fights for Marriage and Religious Liberty” at a lunch sponsored by the Thomas More Society of America. More info on this downtown D.C. event is here.

This Day in Liberal Judicial Activism—October 14


1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment. 

This Day in Liberal Judicial Activism—October 12


1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Marriage, Dred Scott, and the Fog of Unreason


Last week in this space, I referred to the trend of same-sex marriage rulings, now unfortunately sanctioned-by-omission by the Supreme Court, as a “slow-motion Dred Scott.”  This got a rise out of people who professed to be offended—which did not surprise me since so many people have made being offended an actual career choice.  So I later explained what I meant by it.

The result?  My own Two Minutes Hate.  My Twitter feed exploded with touching expressions of regard.  Someone pronounced me “A**hole of the Day” (considering the folks responsible, I’d be happy to own it for a whole week).  I heard from an old friend 500 miles away that I even earned 10 seconds of infamy on “The Colbert Report.”   (For more on Mr. Colbert, see this.)

I was away from any access to Twitter for the better part of a day, and when I returned to my desk I had actual work to do and people to talk to (the expression “social media” does not do justice to the negative impact that obsession with them has on real social life).  So I’ll just make some postscript observations here, now that the detritus of people’s heads exploding has settled to earth.

I noticed that no one who knows anything about constitutional law or the Dred Scott case had any real criticism to offer of what I’d said.  That’s because among such people, comparisons like the one I’d made are a nickel a dozen.  Dred Scott is the paradigm case of judicial “statesmanship” turned bad, with the Supreme Court defying legitimate norms of the rule of law and limits on its own power, while foisting a wholly fictitious account of constitutional meaning on a country deeply divided over the issue that the Court decided.  It also occasioned one of the most celebrated critiques of judicial supremacy in our history, from our greatest statesman.  Aside from that last feature—unfortunately—the episode has striking parallels to our present situation.

Did I therefore mean to say that same-sex marriage is the moral equivalent of slavery?  Only someone who would struggle to earn a D in a basic logic course would draw that conclusion.  I do indeed think state recognition of same-sex marriage is morally objectionable, as do roughly half of all Americans—maybe considerably more than half, but now the courts in most of the country have ruled out any possibility of inquiring into that for purposes of democratic decision-making.  None of us, so far as I know, thinks it is as bad as treating human beings like chattel property.  There, now, does everyone feel better?

Could I have compared same-sex marriage rulings to Roe v. Wade?  Sure, but for 40 years it has been routine to compare Roe to Dred Scott, and rightly so.  Roe relied on the fraudulent doctrine of substantive due process, which is widely understood to have made its first appearance in Dred Scott.  Why cite the sequel when you can cite the original?  Besides, as Ed Whelan pointed out on Twitter, comparing the marriage cases to Roe would not have much purchase with folks who think there’s a constitutional “women’s right to choose”—who largely coincide with same-sex marriage advocates.

Let’s see, I could have compared the marriage rulings to Lochner v. New York.  That too is a notorious substantive due process case, which for over a century has been anathema to liberals who claim (sometimes) to be worried about judicial over-reaching.  Would people infer that I thought same-sex marriage is the moral equivalent of “progressive” interferences with the terms of employment arrangements in bakeries?  I didn’t think so.

Or I could have compared today’s cases to Griswold v. Connecticut, in which the Court strained not to appear to be doing what it was really doing all over again through the due process clause—making a policy judgment instead of a legitimate constitutional decision.  Then people could have complained that I thought same-sex marriage is “just as bad as” . . . married men and women using condoms.  I can feel the waves of loathing from here.

The bad thing about Twitter’s limitations is that arguments can’t be much developed in just 140 characters.  The worse thing about Twitter is that lots of people think this is an excuse for retiring permanently from the business of making arguments.  Judging from the performances of American courts in the last few years, the same-sex marriage issue is having the same effect on many judges, even when they have 140 pages to play with.



This Day in Liberal Judicial Activism—October 11


1990—More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”

Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity.

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Twitter, Facebook, and More


If you’re interested, my Twitter account is @EdWhelanEPPC. My Facebook page is

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Bipartisan Support for Judicial Selection Reform in Tennessee


Tennessee’s constitution unambiguously states that “the Judges of the Supreme Court shall be elected by the qualified voters of the State.” Despite that text, in 1971 the state’s legislature adopted a form of selection commonly known as the “Missouri Plan,” the lawyer-dominated, commission-based method of appointment favored by trial lawyers and far-left organizations funded by George Soros. And since then Tennesseans have been locked in an intense fight dominated mainly by two factions:  Those who insist on the Missouri Plan, and those who insist on judicial elections.

A few years ago we urged Tennesseans to consider a sensible third way: a constitutional amendment sponsored by conservative state senator Brian Kelsey which would abolish the state’s Missouri Plan once-and-for-all, replacing it with an advice/consent process, like the one set forth in the U.S. Constitution, while still requiring judges to stand for a yes/no “retention” election at the end of their term. The proposed amendment also seeks to prevent the sorts of nomination logjams we see at the federal level by giving a nod to a feature originally proposed by James Madison: the governor’s nominees would be confirmed by default if not affirmatively rejected by the legislature within 60 days of nomination.  

We have never shied away from our support for contested judicial elections — a form of selection that has worked well for nearly half of the states — but we also recognize the brilliance of the method of selection codified in the U.S. Constitution by our Founding Fathers. Why not import it to Tennessee if it would settle the debate and abolish the Missouri Plan?

We were thrilled to see Senator Kelsey’s proposed amendment pass through both chambers of the state’s legislature with overwhelming support, and the endorsements of Governor Bill Haslam, Lt. Governor Ron Ramsey, House Speaker Beth Harwell, and a broad range of organizations from the Tennessee Farm Bureau to the Tennessee Chamber of Commerce and the Beacon Center of Tennessee.  Subsequently, the legislature also took the step of allowing the state’s nominating commission to expire, signaling a death blow for the Missouri Plan in Tennessee, and giving the governor the authority to select nominees without the encumbrance of a mandatory nominating commission dominated by special interests.

The proposed amendment is now before Tennesseans, who will decide this November whether to make it part of the state constitution. And, as you can see from the “Yes on 2″ campaign’s television advertisement below, the amendment’s base of support continues to grow.   

Updated 10/16/2014

On Dismantling Roe v. Wade


In an article co-published by ProPublica and the New Republic, Nina Martin presents an interesting (if at points confused) account of how Alabama supreme court justice Tom Parker is exposing the deep incoherence of Roe v. Wade. Her closing quote from a feminist scholar nicely captures that incoherence (even as Martin herself seems eager to embrace it):

Parker is pointing out all the ways the law treats the fetus as a person already…. The pro-choice argument, meanwhile, is that the personhood of the fetus hinges entirely on the women’s perception of it.

A few other comments on Martin’s account:

1. Martin says that the Court’s 1992 decision in Planned Parenthood v. Casey “reaffirmed a fundamental right to abortion.” But both defenders and critics of Roe point out that Casey’s amorphous “undue burden” standard is incompatible with the notion that abortion is a “fundamental right.”

2. Martin’s account of the competing approaches that pro-life groups took, pre-Casey, to countering Roe is confused. She says that the “comparatively moderate pro-life mainstream favored a strategy of regulating and restricting access to abortion, rather than betting on repeal” by constitutional amendment. But she seems not to understand, or at least fails to make clear, that the “pro-life mainstream” strategy was aimed at inducing the Court to reverse Roe.

3. Martin contends that Justice Kennedy “has upheld every abortion restriction to come before him.” That’s both wrong and misleading. It’s wrong because he voted to strike down the spousal-notification provision at issue in Casey. It’s misleading because the existence of Casey means that provisions that clearly clash with Casey will likely either not get enacted in the first place or will get knocked down in the lower courts. In other words, there’s no reason to believe that Kennedy is ready to revisit Casey.

4. When Martin says that the goal of the “personhood” movement is “to get to the U.S. Supreme Court—as quickly as possible, while conservatives still dominate,” I won’t contest that she accurately describes the goal of the personhood movement and its apparent misperception of the Supreme Court. But her phrasing indicates that she herself believes that on the constitutional question of abortion “conservatives still [?? since when?] dominate.” On this matter, any definition of “conservative” that includes Kennedy (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is an unsound one.

5. Here’s one amusing sign of Martin’s cluelessness about the conservative religious world she is navigating: She writes, “Crucifixes are more ubiquitous than the American flag” in Montgomery, Alabama. She evidently doesn’t know the difference between a crucifix and a cross. (According to this Pew map, 6% of adults in Alabama are Catholic.)

Update (2:30 pm): Martin has made changes in response to points 1, 2, 3, and 5 (and, via Twitter, has graciously credited my comments). 

More White House Incompetence


On the day that Eric Holder announced that he would be stepping down from his position as Attorney General, I ran across a senior White House official from a Republican administration. Charitably attributing some minimal level of competence to the Obama administration, he assumed that the White House had already selected Holder’s successor and asked me who I thought had been selected. When I told him that I’d bet that the White House hadn’t made a decision, he was very surprised that it might be so incompetent.

Two weeks later, Politico reports that the White House is “vexed” on how to replace Holder and “is seriously considering waiting until after Election Day to announce a replacement … in order to avoid creating a new political problem for vulnerable Senate Democrats.”


This Day in Liberal Judicial Activism—October 10


2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

Justice Kennedy and Ernest Hemingway


By the standards of Supreme Court justices, Anthony Kennedy is a painfully bad writer. I’d think that’s a proposition that would earn a consensus across the ideological spectrum. So I was especially amused—but, given his pompous self-regard, not surprised—to read this passage from a Wall Street Journal article yesterday about the use of adverbs in legal writing:

On the Supreme Court, Associate Justice Anthony Kennedy has assiduously sought to banish [adverbs] from his own prose.

“I do not like adverbs,” he once explained in an interview with [legal-writing guru Bryan] Garner. “I noticed once that Hemingway had no adverbs, or very few, very few. And I think adverbs are a cop-out,” he said.

Avoiding adverbs “forces you to confront the significance of your word choice,” Justice Kennedy said. “You just discipline yourself to choose your words more carefully.”

Ah, yes, what a careful and disciplined writer Kennedy is.

I’m reliably informed that Kennedy does indeed have an (irrational) animus against adverbs ending in ly and that he instructs his law clerks to avoid them. But rather than simply drop the adverbial sense, Kennedy instead substitutes wordier adverbial phrases or rewrites the passage more awkwardly.

A quick review of one of his opinions (Lee v. Weisman) provides a few apparent examples:

… provisions the Fourteenth Amendment makes applicable with full force [instead of fully applicable] to the States and their school districts. 

High school graduations are such an integral part of American cultural life that we can with confidence [instead of confidently] describe their customary features.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet …. [instead of Providence school officials have customarily provided]

Similarly, Kennedy routinely writes “with respect, I dissent” rather than “I respectfully dissent,” even in contexts in which the former is markedly more awkward: e.g., “For these reasons, and with respect, I dissent” and “That is why, with respect, I dissent.”

But Kennedy’s recent brief concurrence in Hobby Lobby has a surprising number of –ly adverbs, including three in the last full paragraph (unduly, closely, precisely). That’s yet another indication that he wrote that murky opinion in a hurry.

The EEOC on Criminal Background Checks


Do as we say and not as we do, says the EEOC. In fact, don’t even ask what we do.

An Honest Pro-SSM Family-Law Scholar


More for those who care whether the evident triumph of the judicial redefinition of marriage is constitutionally legitimate:

Law professor and family-law scholar James G. Dwyer, who “strongly support[s] extending legal marriage to same-sex couples” but who “recognize[s] the distinction between something being the right thing to do and its being a matter of constitutional right,” has just published his near-final draft of a new article titled “Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation.” I haven’t yet digested the entire article, so for now I’ll just highlight these excerpts from his introduction:

[T]raditional marriage laws should easily pass rational basis review (even if “with bite”), if only judges could grasp and accurately characterize the state interest that actually differentiates same-sex couples from opposite-sex couples. The stream of victories for the Movement principally reflects weak lawyering by defenders of state laws, systematic distortion of the state’s long-recognized responsible-procreation aim by plaintiffs’ attorneys and sympathetic judges, and widespread adoption of counter-arguments so obviously flawed it seems unlikely the advocates or judges expressing them actually believe what they are saying. Judges must fear that regardless of what reason, precepts of democratic governance, or constitutional doctrine might counsel, if they rule against same-sex marriage they will be viewed ever after as having been on “the wrong side of history.” Willful obfuscation by liberal academics posing as `friends of the court’ might also have played a role.…

There is, then, much of what might fairly be characterized as cynicism coursing through the veins of same-sex-marriage advocacy and decision making, with little concern for larger political principles or intellectual integrity, and little interest in securing legal marriage for same-sex couples by convincing fellow citizens and their representatives, even among those with the power and responsibility to fix problems in state law by majoritarian decision making after public deliberation. The end result will be that same-sex marriage spreads throughout the United States on a tidal wave of unprincipled judicial fiat, culminating in a Supreme Court decision devoid of clear and intelligible rationale.

Why care, if one supports same-sex marriage? Apart from pollyannaish concern for the rule of law, and without repeating all that others have said about likely backlash, there is the fundamental problem … that courts cannot deliver what LGBT persons seem to want most –dignity. Court victories are hollow victories for the LGBT community, failing to deliver the societal respect they seek, and in fact removing the opportunity for collective expression of such respect through voluntary legislative reform or popular referendum. What they get is not acceptance by the people with whom they share a neighborhood, a political community, a State, and a nation. Rather, they get the power to force something on those people. They deserve better. 

John Finnis on Posner on Marriage


Except to those who mistake power for truth, the evident triumph of the judicial redefinition of marriage doesn’t speak to the question whether that triumph is constitutionally legitimate. For the reasons I’ve spelled out in dozens (if not hundreds) of lengthy posts, I believe that the answer to that question is clearly no. (The redefinition of marriage through the democratic processes is a very different matter.)

For those interested in the constitutional question, as well as in the consequences of getting that question wrong, I’ll highlight legal philosopher John Finnis’s essay on Public Discourse today, titled “The Profound Injustice of Judge Posner on Marriage.” Among other things, Finnis argues (much as I did in these posts) that Seventh Circuit judge Richard Posner, in his recent ruling against the marriage laws of Indiana and Wisconsin, “did not present [the states’] argument with even minimal integrity.”

Finnis also ties the judicial imposition of same-sex “marriage” to the utterly insane transgender movement that is underway (a recent example of which involves directing teachers not to refer to boys and girls as boys and girls but instead to call them “purple penguins”):

The equality that demands same-sex marriage demands just as imperiously that all social recognition of the distinction between mothers and fathers—of the paternal and the maternal, the masculine and the feminine, and of the sexual identity of everyone as male or female—must be systematically expunged from our schools and social life, to be replaced by the lies and seductions of “gender identities” on the ever more blurry rainbow spectrum. The resultant miseries and losses will reach into every family, and wound Indiana and Wisconsin to the very heart of their people.

This Day in Liberal Judicial Activism—October 9


1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.” 


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