Out here in the Districts, we’re beginning to learn how things really work in Capitol City.
After last week’s 5-4 U.S. Supreme Court ruling imposing same-sex marriage on the entire nation, people who agree with, oh, say, Pope Francis on the wisdom of that policy are getting worried about their religious liberties.
As the pope noted in the Philippines on Jan. 26, “The family is also threatened by growing efforts on the part of some to redefine the very institution of marriage.
“As you know, these realities are increasingly under attack from powerful forces which threaten to disfigure God’s plan for creation and betray the very values which have inspired and shaped all that is best in your culture,” he said.
Similar warnings are coming from Protestant leaders, too. But I’m curious: When Francis arrives in America in September, what will he tell us about marriage, and how will his words be received?
Still, we can’t say we weren’t warned that the courts could do this.
Thomas Jefferson alerted us: “The opinion which gives to the judges the right to decide what laws are constitutional and what (are) not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, 1804)
And in his 1861 First Inaugural Address, Abraham Lincoln cautioned us: “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers … .”
Last week we found those views proclaimed as prophetic in a remarkably direct and caustic series of dissents:
• Chief Justice John Roberts: “The majority’s decision is an act of will, not legal judgment. … The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
• Justice Clarence Thomas: “Had the majority allowed the definition of marriage to be left to the political process – as the Constitution requires – the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
• Justice Samuel Alito: “By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. … If that sentiment prevails, the Nation will experience bitter and lasting wounds.”
• And finally, Justice Antonin Scalia: The ruling is “a threat to American democracy” and “a judicial Putsch.” He added, “This is a naked judicial claim to legislative – indeed, super-legislative – power; a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
So, what can be done? More states can protect religious citizens with statutes modeled on the federal Religious Freedom Restoration Act.
While such an act failed to pass in Maine, Gov. LePage could consider following the lead of a fellow Republican, Gov. Bobby Jindal of Louisiana, who issued an executive order to state agencies.
Jindal said his order “will prohibit the state from denying or revoking a tax exemption, tax deduction, contract, cooperative agreement, loan, professional license, certification, accreditation, or employment on the basis the person acts in accordance with a religious belief that marriage is between one man and one woman.”
And Sen. Ted Cruz, R-Texas, noted last Friday that, “As Justice Alito put it, ‘Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.’ ”
If unelected judges are going to make law like politicians, Cruz said, they should be subject to the sort of political restraints whose lack was decried by Jefferson and Lincoln.
Thus, we need an amendment saying: “Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”
If Congress won’t pass it, then a “Convention of States,” called under the Constitution’s Article V, should be convened to consider such a change.
Are we there yet? Probably not, but we may be soon. I doubt that millions of Americans will let their religious liberties be trampled without pushing back.
We’re made of sterner stuff than that.
M.D. Harmon, a retired journalist and military officer, is a freelance writer and speaker. He can be contacted at:
mdharmoncol@yahoo.com
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