Supreme Court that created ‘same-sex marriage’
Anthony Kennedy, the swing vote in the U.S. Supreme Court’s decision in June to create “same-sex marriage,” would resign if he followed his own instructions to others.
That’s the opinion of Liberty Counsel, the national religious-rights law firm representing Kentucky county Clerk Kim Davis.
She was jailed for nearly a week by U.S. District Judge David Bunning after the Supreme Court’s marriage ruling when she refused Bunning’s order to issue marriage licenses to same-sex couple in violation of her faith.
Her legal claim that the law protecting her religious rights was violated by the order is under appeal.
Kennedy recently claimed in a speech to students at Harvard that “the rule of law is that, as a public official in performing your legal duties, you are bound to enforce the law.”
The Lexington Herald-Leader reported on his appearance:
Without mentioning Davis by name, Kennedy said he sympathized with officials who face “difficult moral questions” when their consciences collide with legal authorities. He said he honored three German judges who resigned rather than follow the dictates of the Nazi government.
“Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong,” Kennedy said before adding that public officials have a legal duty to follow the law.
The clash of personal beliefs and legal obligations “requires considerable introspection,” he said. “But certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore a decision by the Supreme Court.”
In a prepared statement, Liberty Counsel said the message was clear, “government officials who disagree with him and his four other colleagues regarding their newly invented and groundless marriage opinion ought to resign.”
However, the real question, the organization said, should be, “What is the law and what happens when justices violate their oath to interpret the Constitution?”
A WND request for comment from Kennedy did not generate a response.
Mat Staver, the chairman of Liberty Counsel, said unjust laws “should be resisted.”
“Religious freedom and conscience should be protected. Justices or judges who disregard the Constitution and impose their own will should resign,” he said.
Ed Whelan, a former Supreme Court clerk, said in a recent posting that “follow the law or resign” will “indeed often be the only choice facing government officials who have religious objections to carrying out their duties.”
“But Kennedy’s statement overlooks the very real possibility … that Kim Davis may have a religious-liberty right under Kentucky law not to issue marriage licenses to same-sex couples (though that right would not extend to barring others in her office from issuing such licenses, at least if the licenses don’t bear her name),” he wrote.
“Kennedy’s statement also overlooks the distinct claim … that, contrary to the myth of judicial supremacy, government officials have an independent duty to apply their best understanding of the Constitution, not the Supreme Court’s mistaken understanding of it.”
The analysis continued: “Given his career of rulings that barely masquerade his willfulness, Kennedy, in any event, is hardly to be taken seriously as a proponent of the ‘rule of law.’ Had he followed his own advice of ‘follow the law or resign,’ he would have resigned long ago. Instead, he avails himself of a third option: to misread the Constitution to impose his own policy preferences.”
Staver said: “We must stop fooling ourselves that whatever five people on the Supreme Court say is automatically the rule of law imposed on every American. When the justices violate their oath and discard the Constitution they are sworn to uphold, they act on their own without constitutional authority. While there are many legal points that are debatable, it is beyond obvious that there is no constitutional authority to impose same-sex marriage by judicial decree.”
The newspaper reported that Kennedy was asked about the conflict and didn’t mention Davis by name.
Kennedy said that while he sympathized with officials who face “difficult moral questions,” such officials should resign.
It apparently was the first time one of the justices who created same-sex marriage had addressed the issue in public comments.
In fact, the court declined even to respond to formal legal filings before the decision was announced to address the concern that two justices, Elena Kagan and Ruth Ginsburg, apparently violated common judicial ethics rules by advocating for same-sex marriage while the dispute was pending before the court.
Both have performed same-sex ceremonies. Ginsburg even said in an interview that it wouldn’t take much of an adjustment for Americans to advocate for homosexual unions.
A brief from the Foundation for Moral Law explained that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The foundation pointed out in a submission to the Supreme Court: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous … It would not take a large adjustment.’”
Ginsburg’s interview was with Bloomberg News.
The controversy had resurfaced, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.
The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”
Additionally, the same justices had ruled only two years earlier, in the federal Defense of Marriage Act case, that states had exclusive jurisdiction over marriage. To create “same-sex marriage,” they had to reject their own conclusion. In short, their decision suggested their earlier ruling was in error.
WND also has reported that dozens of top legal scholars from the likes of Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University said state and federal officials should treat the Supreme Court’s recent creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to have settled the law of the United States,” said the statement by the American Principles Project.
“We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons. To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evidence in Obergefell.”
In the marriage case, the lawyers explain, the five justices who joined to create same-sex marriage, “by their own admission, can find no warrant for their ruling in the text, logic, structure or original understanding of the Constitution.”
They noted the four justices who dissented didn’t simply disagree, they feared severe harm would result.
For example, Justice Antonin Scalia called it “a naked judicial claim to legislative … power; a claim fundamentally at odds with our system of government.”
Justice Samuel Alito said it is “beyond dispute that the right to same-sex marriage is not among … rights” rooted in the nation’s history and tradition.
Chief Justice John Roberts said the creation of same-sex marriage was unconnected to the Constitution.
And there are those who point out that the Constitution doesn’t mention marriage but does dictate that everything not mentioned in the document is left to the states and the people.
from PropagandaGuard https://propagandaguard.wordpress.com/2015/10/30/justice-kennedy-chastised-for-not-walking-his-talk/
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