March Madness (not those courts)

Part 2 - Not a game; a life, a miscarriage of justice, a power grab

Please read Part 1 here.

The Obergefell Opinion was written by Justice Anthony Kennedy, now retired. Those who dissented were: Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. Those who agreed were: Ruth Bader Ginsburg (d. 2020), Elena Kagan, Stephen Breyer (ret. 2022), and Sonia Sotomayor.

New on SCOTUS since 2015 are Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. Which one among these would concur that Obergefell should stand? Would Chief Roberts change his stance? Would Barrett vote with the conservatives?

From the Syllabus of the Obergefell Opinion of June 26, 2015:
…Respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

Hard to believe.

Moses in art form is in our nation’s capital, particularly at the Supreme Court. On the oak doors into the court chamber, the Ten Commandment Roman numerals are embedded. On the south wall frieze of the chamber, Moses with a tablet for commandments 6-10,¹ stands third in a line of lawgivers of the pre-Christian era.

Outside, the east pediment features Moses with both tablets in the center of a trio that includes Confucius and Solon, but Moses, in contrast to others pictured in the capital buildings, received the law inscribed on the tablets— from God.

A relief portrait of his head, with 22 other historic lawgivers, decorates the House Chamber. Photos credit

We sense the person of Moses at times in the writings of our courts’ judges. Following are some excerpts from the Obergefell dissenters.

Chief Justice John Roberts led the dissent:

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. …Expanding a right suddenly and dramatically is likely to require tearing it up from its roots.

Associate Justice Antonin Scalia:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”² With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

Associate Justice Clarence Thomas:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. …[Petitioners] want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized. … Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside.

Associate Justice Samuel Alito:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

His words were prophetic.

Let’s turn now to some excerpts from the March 6, 2025, Opinion of the Sixth Circuit Court of Appeals, penned by Rebecca White, a senior judge for the Court of Appeals in Cincinnati since 2022, appointed by George W. Bush in 2008. Judge Andre Mathis concurred.

Senior Judge Rebecca White:

The First Amendment shields Davis where she “functioned as a private citizen,” but not where she “engaged in state action.” … That binary is outcome-determinative here because the act for which Davis is being held liable—denying Plaintiffs a marriage license—is quintessential state action.

Judge Chad Reader:

Construing a “federal statute [to] permit[] a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.” Id. Davis may not thwart this clear principle of law. On that basis, I concur in the majority opinion’s conclusion that Davis’s Kentucky RFRA defense fails.

No ‘qualified immunity’ for Kim and no resort to the Free Exercise Clause and the Kentucky Religious Freedom Restoration Act!

Nature’s God or the Creator

Though it is the Constitution that judges must uphold, America has other founding documents, The Bill of Rights and The Declaration of Independence, which undergird the Constitution. The latter begins with these words:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Some say the Creator is the final authority for our Constitution; others credit Nature’s God that ‘the fundamental things apply’. Traditional Judeo-Christian doctrine delineates the commandment forbidding adultery as applicable to homosexual unions, citing numerous Bible passages. This taboo is corroborated in the wilds, barnyards and bedrooms of the world; same sex unions confound and abuse creation.

Kim Davis, you broke the law. Thank you and Liberty Counsel for the past decade of sacrifices and hard work to help defeat lawlessness with arguments to uphold logic, basic law and our founding documents.

1. The commandments that are not inherently religious

2. fn 26 -The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton).