The Problem of Judicial Tyranny

I’d like to focus upon something that I consider to be one of the greatest problems we face relative to securing a future for our country. That problem is judicial tyranny.

My hope is that today we can look a bit at the problem, reach a conclusion or two, and then discuss what action might be taken to stop it.

Well, in order to illustrate the problem I’d like to tell a story. It’s certainly not the only story that could be told with regard to this problem, but I think it’s one that illustrates it very well. It’s a story that you, no doubt, are all aware of, but there may be some details here and there that you might not have known. There is a fair amount of detail here, and I hope you won’t find this tedious. Please bear with me, and I think you’ll find, as I did, the relating of all these things together to be rather sobering. This is the story of same-sex marriage laws in the United States.

Our story begins in 1995 in the State of Utah. While several other states had previously approved statutes defining marriage as between one man and one woman, Utah became the first state to enact a Defense of Marriage Act.

A year later President Clinton signed the federal Defense of Marriage Act, upholding states’ right to ban same-sex marriage and prohibiting the federal government from recognizing same-sex marriage.

In 1998, Alaska approved a constitutional amendment banning same sex marriage.

In 2000, Nebraska voters also approved a constitutional amendment banning same sex marriage. That same year California voters approved Proposition 22, which bans same-sex marriage in state law.

In 2002, Nevada also approved a constitutional amendment banning same-sex marriage.

Then in 2003, The Massachusetts Supreme Court ruled that the Massachusetts state constitution gives the right to same-sex marriage to gay and lesbian couples. This was the first state to allow same-sex marriages, which subsequently began in 2004.

That same year (2004), no doubt in reaction to the Massachusetts ruling, thirteen states: Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah all approved constitutional amendments banning same-sex marriage.

The following year (2005), Kansas and Texas approved constitutional amendments banning same-sex marriage. In 2006, eight more states approved constitutional amendments banning same-sex marriage.

Also in 2006, voters in Arizona rejected a constitutional amendment banning same-sex marriage. This was the first time such an amendment had been rejected by voters in any state. Nonetheless, it did pass two years later.

In 2007 legislation was passed legalizing same-sex marriage in California, but it was vetoed by Gov. Arnold Schwarzenegger.

Then in 2008, the Connecticut Supreme Court ruled that their state constitution gives same-sex couples the right to marry. That same year, the Supreme Court of California ruled the same way. However, later that same year, voters approved Proposition 8, a constitutional amendment banning same-sex marriage.

Also in 2008, Arizona and Florida approved constitutional amendments banning same-sex marriage.

Then in 2009, The Iowa Supreme Court ruled that the state’s constitution guarantees same-sex couples the right to marry, making Iowa the third state to allow gay and lesbian couples to wed. That same year, New Hampshire, Vermont, and the District of Columbia all legalized same-sex marriage through legislation.

A year later (2010), A federal district court ruled that DOMA is unconstitutional when it prohibits the federal government from recognizing same-sex marriage. Another federal district court ruled that California Proposition 8 was unconstitutional as well.

In 2011 Gov. Andrew Cuomo of New York signed into law legislation legalizing same-sex marriage. That made a total of six states where it was allowed.

In 2012, voters in Maine, Maryland and Washington state approved laws legalizing same-sex marriage, becoming the first states to do so through popular votes. Voters in Minnesota rejected a constitutional amendment that would have banned same-sex marriage. Voters in North Carolina approved a constitutional amendment banning same-sex marriage.

The following year, The United States Supreme Court struck down the federal DOMA, making the federal government recognize same-sex marriages from those states where same-sex marriage had been made legal. The Court also declined to rule on California Proposition 8, taking the position that the defenders of Prop. 8 had no legal standing, and resulting in same-sex marriages taking place again in California.

That same year (2013), Governors in Delaware, Hawaii, Illinois, Minnesota and Rhode Island sign bills legalizing same-sex marriage. Courts in New Jersey and New Mexico issue rulings that allow same-sex couples to wed.

In 2014, several federal court decisions struck down same-sex marriage bans in a number of states, and declined to review cases in Indiana, Utah, Virginia, and Wisconsin. The effect of this was to require those states to allow same-sex marriage. Additional federal court rulings legalize it in Oregon, Pennsylvania, Colorado, Nevada, Alaska, Idaho, West Virginia, North Carolina, Arizona, Wyoming, Kansas, South Carolina and Montana.

Nonetheless, the 6^th Circuit Court of Appeals became the first and only federal court to uphold same-sex marriage bans, but the ruling only applied to Michigan, Ohio, Kentucky and Tennessee.

Finally, on June 26, 2015, the U.S. Supreme Court ruled all state bans on same-sex marriage unconstitutional – thus allowing gay and lesbian couples to marry in all 50 states.

Well, a couple of observations about this story are in order:

First, as you likely noticed, in the majority of the states where same-sex marriage was legalized, the issue was decided not by the American people but by the courts.

Secondly, as of 2003, the vast majority of the states had legislative bans on same-sex marriage. By 2007, many of those same states had, in addition, passed an amendment to their state constitutions banning same-sex marriage. Twenty nine states eventually did this. And, of course, on top of that there was also the federal DOMA. In short, these states had done all that was in their power to ban same-sex marriage, and, short of an amendment to the U.S. Constitution, even the legislative and executive branches of the federal government had attempted to protect the traditional understanding of marriage.

So what are we to make of this? You are probably familiar with this famous quote by Thomas Jefferson in which he responds to the landmark ruling by the United States Supreme Court in Marbury v. Madison: “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”

While it didn’t happen as quickly as Jefferson may have feared that it would, there is little doubt in my mind that we find ourselves now in exactly the place that he described: We are indeed under the despotism of an oligarchy.

Do we have other problems with regard to our governance beyond that of the judiciary? Of course we do! We’ve got a President and a Congress that have done us much harm. There is no denying that. But I would contend that on the issues that matter the most to the people in this room, it is the courts that have done far more damage than our elected officials.

And the courts are fully aware of the power they have. The best example of that is the “Rule of Five” that Justice Brennan famously used to teach to his new clerks. Brennan would ask them what the most important rule they needed to know when working in his chambers. When giving them the answer he would hold up his hand with the fingers wide apart. This is the most important rule in constitutional law, he would say. “The law of five. With five votes you can do anything around here.”

Let’s consider that a for a moment, because Brennan was right. In the Obergefell v. Hodges case decided last Summer, five people in black robes decided, as a legal matter in the United States, that marriage was no longer going to be understood as being between one man and one woman. Five people decided this, (once again, I’m speaking merely as a legal matter) five people decided this for nearly 320 million of us.

Justice Antonin Scalia said this in his dissenting opinion re: Obergefell v. Hodges:

“The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Once again, a court has done the unthinkable, and the unthinkable has become more routine. The U.S. Supreme Court in particular has, once again, done something that will have unfathomable consequences for our nation.

You all know that in 1973, of course, they imagined that the due process clause of the 14^th amendment included a right to privacy that extended to the killing of one’s unborn child. At that time, in a lament similar to Scalia’s dissent in Obergefell, Justices Byron White and William Rehnquist pointed out the Court’s creation of new constitutional rights. Justice White said this: “I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.” He went on to say this: “ As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

Justice Rehnquist, for his part, said this: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” 

While I do not believe the voice of the people is the voice of God, I can tell you this: In Obergefell, the vox populi was crushed by the courts. And in both Obergefell and Roe, the vox dei was completely ignored.

And we have to ask ourselves, what meaningful protection does the free exercise clause of the First Amendment give us anymore? Let’s ask the Christian bakers, and florists, the Christian bed and breakfast owners that question. Let’s ask Dick and Betty Odgaard, who used to own the Gortz Haus in Grimes, IA, that question.

So what are we to do?

I believe that one of our foremost objectives must be to stop a runaway judiciary and the tyranny that goes with it. And with all due respect to our representatives in Congress, I believe we cannot rely on them to do anything about it. I believe we must call an Article V convention of states and put a stop to this tyranny while we still have a country left to save. All we need are 34 states to submit applications for an Article V convention. These applications must all deal with the same issue.

Here are just some of the things that could be done through this process:

• We could mandate term limits for Supreme Court justices.
• We could change the appointment process so that Supreme Court appointments would be made by the states.
• We could allow Supreme Court decisions to be vacated by a super majority of the either the states or the congress.
• We could mandate originalism as the only allowable judicial interpretation for Supreme Court justices under penalty of impeachment.

Want to know the real beauty of all this? Congress cannot stop this. Neither can our illustrious President with his phone and his pen.

I know that many of you may be thinking that even if we could accomplish this, we run the risk of a “runaway convention” and that’s an unacceptable risk. I have two responses to that concern:

First, from what I can tell, the idea of a runaway convention of states is more or less a scary myth. Kind of like Climate Change. Ratification of any proposed amendment requires the approval of 38 states. Only 13 states are required to say “no” to defeat a proposed amendment, so the likelihood of a “rogue amendment” getting approved is essentially non-existent.

Second, I believe with all my heart that even if such a risk was real, we should take that risk anyway. You see, I believe, and I suspect many of you do too, that if we don’t take some dramatic action, and take it soon, we won’t recognize our country in another 10 years. Oh, there may well still be a nation known as the United States of America, but it won’t resemble anything like the nation we used to know and love.

And so I say again, I believe we must call an Article V convention of states. I believe this is our first and best option to put an end not only to judicial tyranny, but to all kinds of abuse and over-reach by the federal government. We have other options, of course, but none of them are particularly pleasant.

Perhaps some of you are sympathetic to the notion of nullification of federal law by the states. I would simply ask that you join with us to work for a convention of states first before moving to attempt nullification. Look, we know two things: We know that the theory of nullification has never been legally upheld by the federal courts, but we also know that there is no debate about the legality of an Art. V convention of states.

As Christians, we, of course, have great concerns about our various duties with respect to Romans 13. Christians have been divided on aspects of this subject for centuries. But I know of very few Christians who would object to pursuing a convention of states on any grounds related to Romans 13. We should be able to unite and work together in this endeavor.

Allow me once again to quote Justice Scalia. He just made these remarks at Santa Clara University last Wednesday.

“For Pete’s sake, [the Constitution] is a legal document…It means what it says and it doesn’t mean what it doesn’t say….People don’t say anymore, ‘It’s unconstitutional.” Instead, anything you hate should be prohibited and anything you love should be supported by the Constitution. I don’t know where this comes from.”

He went on to say that the Supreme Court’s movement toward what he called the “living Constitution” started in the 1920s, and began with essentially non-controversial rights but eventually headed down a “slippery slope”. He said, “At the bottom of that slope, I can’t imagine how you can go any further, is the right to same-sex marriage.” Indeed!!

Finally, he said this: “Do you think the American people would ever have ratified the Constitution if they had been told “the meaning of this document shall be whatever a majority of the Supreme Court says it is?”  He added this: “It’s the destruction of our democratic system, I cannot imagine the system can continue with more and more of the basic rules made by the Supreme Court.”

I believe the first and best remedy to what Justice Scalia has pointed to here is an Article V convention of states. (Michael Farris was at the 2015 Caffeinated Thoughts Briefing and spoke on that subject.)

I would be remiss if I failed to acknowledge that all of our attempts to do anything will, of course, all be for naught if God isn’t pleased to grant His smiling Providence on our efforts in this regard. No doubt our greatest effort must remain in those times when we are on our knees in prayer.

May God protect the church of our Lord Jesus Christ, and may God bless America.

**Adapted from a speech given at the Caffeinated Thoughts Briefing on 10/31/15.