Politics & Policy

Rick Santorum and Justice Roberts — Our Moral Champions

(Scott Olson/Getty)

Six cameras are trained on the stage of the National Organization for Marriage’s gala at the Willard hotel in Washington — more cameras than ever before, testimony to the media’s desire to cover leading speaker Rick Santorum, who is about to, as they imagine, make a fool of himself over marriage. The ballroom is packed.

“People warned us not to hold a gala a few days after the Supreme Court ruling because we might lose and nobody would want to show,” said NOM’s president Brian Brown to the laughter and applause of the assembled crowd. “You are here because you know that no judge can redefine the nature of marriage,” Brown said.

‘If the policy of the Government on vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court . . . the people will have ceased to be their own rulers.’

Princeton professor Robby George (who kindly described me, alongside him, as one of the founders of NOM, although I left the organization’s leadership team almost four years ago) quoted Abraham Lincoln’s opinion on how he, the Republican party, and the nation should respond to the Supreme Court’s ruling in Dred Scott: “The candid citizen must confess that if the policy of the Government on vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal action, the people will have ceased to be their own rulers.” Lincoln’s answer “must be our answer,” said George. “I say we stand with Lincoln, what about you?” Massive applause.

Guess who else has recently made the comparison between Obergefell and Dred Scott? No, I am not talking about the featured speaker Rick Santorum (although he took a hit a few days ago among progressives for comparing the two cases in terms of legal reasoning).

I am talking about the remarkable and under-appreciated dissent of the Chief Justice of the Supreme Court, John Roberts. We’ve come to expect zingers and fireballs from Justice Antonin Scalia. But Justice Roberts is the temperate conservative, the consensus builder on the Court.

When John Kasich goes on national television to say, “Relax, don’t worry,” as in: “Let’s not create problems where there frankly are none,” I want to ask him, “Why should I believe you know more than the Chief Justice of the Supreme Court, who pointed to grave dangers”? Roberts sounds the alarm, in his dissent:

Today’s decision, for example, 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. . . . 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.

Indeed although Justice Roberts’s language is slightly more constrained here than Scalia’s, his warning of disaster is equally urgent.

Roberts warns that Kennedy’s opinion has no grounding at all in the Constitution: “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.” Kennedy’s position is “indefensible as a matter of constitutional law. . . . There is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.” The majority opinion raises anew the idea of a right to polygamy, he observes: “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.”

Roberts affirms that our marriage tradition is grounded in reason, not bigotry:

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history — and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.

The analogy to Loving and interracial marriage, he adds, is intellectually absurd:

Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases presumed a relationship involving opposite-sex partners.

Roberts then compares Obergefell to Dred Scott:

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford. There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so.

In sum:

This approach is dangerous to the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it.

I don’t think, with all due respect, that anything Scalia ever wrote exceeds this as a slap back, intellectually and morally, at the lawless liberalism of the majority.

As he stepped on the stage and under the spotlight, with the cameras rolling, Rick Santorum pushed back against the GOP candidates — from Kasich to Christie to Graham — who say it’s time to move on. “When people tell me it’s time to move on, when I hear presidential candidates saying that, here’s what I say to them: Why do you want to be president?”

To those who say we should calm down and wait and see how bad it is, Santorum had this answer:

Ask Brendan Eich whether we should wait and see whether you can lose your job because you were on the wrong side of this issue. . . . Ask Kelvin Cochran, an Atlanta fire chief who wrote a book for his Bible study. Ask Melissa Klein of Sweet Cakes by Melissa . . . This is not a future thing that is going to happen. It is happening now, and as president in the first 100 days, I will pass the First Amendment Defense Act into law.

This is the minimum I expect of any candidate who wants to be the Republican nominee. And I expect Christian conservatives to dig deep to contribute sacrificially to a presidential candidate willing to defend their rights in this way.

Pointing to his young son Daniel who is headed for the Air Force, Rick Santorum, our would-be commander-in-chief, returned again to the military:

Ask military chaplain Wes Modder, disciplined for giving Biblical advice as a chaplain in private, if we have a problem. Ask Monifa Sterling, thrown out of the military for taping a scriptural verse on her computer — no, not the verse you think. It was “No weapon formed against me shall prosper.” This isn’t a prediction about what will happen tomorrow. It is happening now, under this president.

Then, pointing to himself, he made a promise: “And under this president, it will end.”

— Maggie Gallagher is a senior fellow at the American Principles Project. She blogs at MaggieGallagher.com.

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