And the Government will be upon His Shoulders

For to us a child is born, to us a son is given, and the government will be on his shoulders. And he will be called Wonderful Counselor, Mighty God, Everlasting Father, Prince of Peace.  (Isaiah 9:6 NIV)

We are in Isaiah for a second week, and again, the passage is also in Handel’s Messiah.  Last week’s reference was to the more pastoral Comfort Ye My People.  This week you should be standing and singing when you read this, which will get some attention if you are at Starbucks.

I will include some personal confessions this morning, the first is that I love to listen to Handel’s Messiah at full volume around Easter and Christmas and sing along.  It’s not pretty, but I am by myself in my “music room” in the basement.  This week, I have not listened to the recording, but instead thought and prayed about this verse.  It is a wonderful promise.  The phrase that I keep coming back to is “and the government will be on his shoulders.” The promised son, Jesus, will be the head of the government in God’s kingdom in the new heaven and new earth.  The cable news networks, if they exist there, will refer to him as: Wonderful Counselor, Mighty God, Everlasting Father and Prince of Peace.  Isaiah goes on to tell us there will be no end to the greatness of his government and peace.

Now, a second confession. When I think of our government and our elected leaders, I don’t use any of the terms Isaiah uses.  Instead, I think “swamp” and “dumpster fire.”  I understand that Isaiah is talking about a future time after Jesus has returned and God has established His eternal kingdom.  But, though Jesus is not here in bodily form, he is here and he works through those who follow him.  This has led me to think this week about how I, and other believers, can place our government on Jesus shoulders.  This is not a political rant, so please don’t stop reading.

There is controversy within political and Christian circles about whether our nation’s founders intended to establish a government based on Christian principles.  The “Truth Project” from Focus on the Family made a compelling argument that they did.  My constitutional law profession made a compelling argument that they didn’t.  The question may be interesting for someone who likes to talk about the law.  It is irrelevant for most believers.  Regardless of the founders’ intent, we live in a democratic system and Jesus can have an impact on the government through his followers.

A third confession, as a believer, I don’t think much about my role in the political process.  In fact, there are times I dread it and actively avoid it.  I am turned off by believers on both ends of the political spectrum who want to tell me what I should think and how I should vote.  I will add a voice to that discussion that I hope will be a voice of reason and faith.

Jesus’ followers are called to be salt and light in a dark and decaying world, including our political system.  That calling may lead some to run for elected office or lead efforts to reform parts of the system they perceive as broken.  But, it should lead all of us to pray for our political leaders and elected officials.  A final confession, when I was getting ready to write this post, I had to Google the names of the House majority and minority leaders.  I can’t pray for people when I don’t even know their names.

Would you join me this week to pray for our political leaders?  Pray that God will give them wisdom, that He will help them work together, and lead wisely.  These are the top six national political leaders, you should feel free to expand your list if you like:

President –  Donald Trump

Vice President – Mike Pence

Senate Majority Leader – Mitch McConnell

Senate Minority Leader – Chuck Schumer

House Majority Leader – Kevin McCarthy

House Minority Leader – Nancy Pelosi

There will be a day when Jesus leads the government.  It will be a theocratic monarchy and not a democratic republic.  Until that day, will we take up the calling to be salt and light and pray for our elected leaders?

Press On!




Understanding No One Can Fathom


Do you not know?  Have you not heard?  The everlasting God, the Creator of the ends of the earth, He will not grow tired or weary, and his understanding no one can fathom. (Isaiah 40:28 NIV)

This simple statement about the nature and character of God is one of those “plaque-worthy” verses.  You know what I mean, you’ll find the verse on a nice plaque you hang in your house or printed on a card you send to a friend going through hard times.  It is from the chapter of Isaiah that begins with “Comfort ye my people,” which I can’t read without hearing Handel’s Messiah in the background. If you have a Bible on your phone or tablet, take a minute to read Isaiah chapter 40 before you go on because it will put the verse and the rest of this post into context.

When you see the verse in context, you find that Isaiah’s statement above in verse 28 is made in response to the people of Israel complaining, “My way is hidden from the Lord; my cause is disregarded by my God.”  That sentiment may not be “plaque-worthy,” but we have all felt it.  We face trouble and we pray and plead and seek God’s intervention to fix the problem or make it go away.  Yet, the problem continues, and we feel like our prayers are unheard.  In those situations, verse 28 is not comforting at all, it is frustrating.  God, the everlasting creator of the universe knows exactly what I am going through and He is choosing not to fix it.   Why?  Because, He has understanding no one can fathom.  He knows what is best for me.

These times of testing are difficult to go through and difficult to understand.  For a long time, I thought of God as the great professor in the sky who would teach me a lesson and then test me, so He could see if I had learned it.  “OK, Dave, this week we learn about patience.  Here’s what the Bible says about patience.  Now, here is a totally frustrating situation so I can see if you have paid attention.”  Then it occurred to me one day that God knows how I will do on the test before it even begins.  He knows me better than I do.  So, who is the test for if it isn’t for God?  It is for me.  The tests and trials I face show me where I need to grow and where I need to change.

In his letter to the Romans, Paul said, “Therefore, since we have been justified through faith, we have peace with God through our Lord Jesus Christ, through whom we have gained access by faith into this grace in which we now stand. And we boast in the hope of the glory of God. Not only so, but we also glory in our sufferings, because we know that suffering produces perseverance; perseverance, character; and character, hope. And hope does not put us to shame, because God’s love has been poured out into our hearts through the Holy Spirit, who has been given to us.” (Rom 5:1-5 NIV). Just as precious metals are refined by fire, our faith is refined by testing.

This chapter ends with another plaque-worthy section that you have probably seen but may not have had the context:

He gives strength to the weary

and increases the power of the weak.

Even youths grow tired and weary,

and young men stumble and fall;

but those who hope in the Lord

will renew their strength.

They will soar on wings like eagles;

they will run and not grow weary,

they will walk and not be faint.

(Is 40:29-31)

God may not sweep in and take away our problems.  But,  instead of stumbling and falling, He will give us strength to run and soar and, in doing so, we will learn about God’s character and develop our own.

I also want you to know that God does intervene in situations and deliver His people in times of trial.  If you have time to read a great book about God working miracles today, I recommend Miracles by Eric Metaxas.

Press On!








Update – Cincinnati – January 20

Good morning from Cincinnati.  This week the changes have been good and very noticeable.  This is a quick update of the changes and prayer requests.

My breathing is finally better. I’m not sure what happens, but I know it is a point I hit as I recover from a flare-up.  I can tell a difference in my breathing and people I talk to usually say “you sound better today.”  The break came mid-week.  It is also the sign that I can begin to taper my steroids without the relapse starting again.

I am getting the strength back in my legs.  I have done OK with the steps in the condo and they have given me some nice every-day therapy.  I have also started walking the dog a little, which the Daisy and Mary Ann both appreciate.  I will probably avoid the gym until we get beyond the flu season a little.

My follow-up appointment at the Cleveland Clinic this week was fine.  We talked about some options for changing my medication but will wait until spring before we make any decisions.  The time at the Clinic was about three hours longer than I planned because the doctor sent me off for an X-ray and blood test afterward.  Thankfully, our son-in-law Mike went up me and drove most of the way.  It makes for a long day when I need to drive 4 hours each way to get to a doctor’s appointment.

I have reached the point that the steroids are waking me up in the morning.  That is another indicator that I am getting rested and usually happen as my other symptoms decline.  As a practical matter, it means that I will have a week or so of early mornings when I can write blog posts and to other stuff.

Please continue to pray for my recovery.  My biggest concern is avoiding the flu and the respiratory infections that are common this time of year.  Pray for my law practice.  Specifically, that I will meet new clients.  Pray that God will continue to use this experience to teach me and give me the opportunity to share my experience with others.

If you would like, please sign up to receive notices of blog posts.  It is in the upper right hand corner of this page.  I will be doing a weekly devotional post on Sundays and posts on other topics as things come up.

Thanks for your continued support and concern.

Press On!




Make 2018 the Year of the “Do”

Genesis 1: 1 – In the beginning God created the heavens and the earth.  

Our culture has fully bought in to the idea of moral relativity.  Which means that it is up to each person to decide what is morally right for them.  Usually it is subtle, “Well, I wouldn’t do that, but he needs to make his own choices and I can’t judge him.”  Like me, not everyone has bought into the idea of relative morality. They believe there are moral absolutes; things that are right and wrong regardless of what the rest of the world thinks.

Folks who believe in relative morality get along pretty well with all the other moral relativists, but they butt heads with the moral absolutists.  Because, the moral relativists hold back one absolute, which is, the people who believe in moral absolutes are always wrong. You don’t need to follow the argument very far before it begins to unravel.  If I don’t believe in moral absolutes, I cannot believe that moral absolutes are wrong. (The best I can say is that I have not chosen to accept moral absolutes.) To believe there are no moral absolutes is, itself, a moral absolute, and my position collapses.

What the moral relativists are really saying to the moral absolutists is, “In my universe, I have the moral authority to condemn you for holding moral absolutes that disagree with my moral decisions.  But, you don’t have the moral authority to disagree with my moral decisions.”

That’s where today’s verse comes in.  God’s response to the moral relativist is, “It’s not your universe. I made the universe and I included physical and moral laws.  You can’t change the moral laws any more that you can change the physical laws.” If we believe Genesis 1, one of the conclusions that follows is that God is the self-existent first cause of the universe.  Which means that a thing is good if God has made it and it is right is God has said it is right.

With the heady introduction invoking God’s moral authority, this is where you expect me to give you God’s big moral “don’t” list.   You can take the list into the morally relative world and club it into submission by pointing out the logical inconsistencies with its position.  The problem is, that doesn’t work.  Following a big “don’t” list may make us feel morally superior, but it won’t change the world.

Instead, let me kick off your week with a short moral “do” list.  The great thing about this list is that they will change the world and most moral relativists won’t condemn you for doing them.  Do these things and see how they change your life and the lives of those around you:

  1. Love God with everything you have;
  2. Love your neighbor as yourself;
  3. Feed and clothe the poor;
  4. Visit those in prison;
  5. Care for windows and orphans,
  6. Go into the world and make disciples.

OK, you’d feel better if I also gave you a couple “don’t” ideas:

  1. Don’t worry about what you will wear and what you will eat, God takes care of the birds and flowers and He will take care of you.
  2. Don’t grow weary of doing good.

As you read the Bible, you can develop your own moral “do” list.  Pick one or two at a time and focus on them until they become habits. Then move on to something else.

Make 2018 the year of the “do.”

Press On!




The Forbidden Fountain – An Obergefell Parable

Corwin spent a troubled night trying to understand why his Christian friends did not want to provide their services for same-sex weddings.  They were good at what they did; photographers, bakers, dress makers and the like.  They seemed like good people.  They went to church and talked about how they loved God.

As he drifted back to sleep, Corwin found himself walking along an abandoned road.  He came upon an old playground and, to his surprise, his Christian friends were there playing with a group of African-American children.  The playground appeared to be someplace in the southern United States and the time was around 1965.  The swings and slides were old and you could still see that the drinking fountains had been labeled “White” and “Colored” from the days of “separate but equal.”

He stood and watched his friends play with the children for a long time and the day began to grow warmer.  The children became thirsty and walked to the drinking fountain that was labeled “White” and his friends stopped the children and took them to the drinking fountain labeled “Colored.”  He was confused and angry.  Didn’t his friends know that the law had changed?   These children had every right to drink from whatever fountain they wanted.

Corwin walked onto the playground and his friends welcomed him and asked if he would join them.  In his anger, he criticized the man for forcing the child to follow the old ways of discrimination.  Didn’t he know that the law had changed?  Didn’t his God call him to a higher standard than that?  His friend just said, “This is your first visit to the playground?  Let me explain.”

He told Corwin that the playground had been abandoned after the law changed.  It was the only place these children had to play before and they were left without a safe place.  So, his friends had been slowly reclaiming the playground, fixing the equipment, and keeping the grass mowed.  They also came over to play with the children several days a week.

“Yes,” he said, “that was great, but what about the drinking fountain?  How could you force the children to drink from the Colored fountain?”  His friend explained that the two fountains were fed by separate water lines.   They believed the water line to the White fountain had developed a leak and the water was contaminated.  Children who drank from that fountain had sometimes become sick.  They wanted to turn the fountain off.  But, the city insists that the water is fine and won’t let them turn the water off.  Luckily, the water line that fed the Colored fountain was still good and the water was fresh.  The children could drink all they wanted from that fountain and no one ever got sick.  “Now,” he said, “we ask them to drink from the old Colored fountain because we know something about the water that the children don’t know.”

The playground and children faded away.   Corwin was standing with his Christian friend outside the bakery that his friend owned.  The baker had recently told a gay couple that he would not bake the cake for their wedding.  Corwin couldn’t understand why.  Didn’t his friend know that the law had changed?  Why was he clinging to the old ways?  Does the Bible say that a baker can’t make a cake for a gay wedding?

The baker explained that the question isn’t that simple.  The Bible says that intimate relations between two people of the same sex is a sin.  And, if a person chooses to sin intentionally over and over again, they could be separated from God forever.  To the baker, that is the worst thing that could ever happen to someone.  “So,” Corwin said, “to you, helping a gay couple with their wedding is like helping a child drink from the contaminated fountain?  You don’t know for sure that it could hurt them, but you believe that it could be very serious and you don’t feel right about it.”  The baker nodded.

Corwin was back in the park.  A child was pulling on his hand and asking for help getting a drink from the White fountain.  Corwin reached down, picked her up, and turned the handle.  The water bubbled up cool and clear.  It didn’t look bad.  He paused.  “You know, my friend the baker thinks this water could make us sick.  I’m thirsty too, how about if I carry you to the other fountain and we get a drink there?’

To go to the Oberfefell resource page, follow this link.




Obergefell – The Dissenting Opinions

We won’t spend the time going over the dissenting opinions that we spent on the majority opinion.  The dissenting opinions make for interesting reading if you want to get into some of the legal rebuttal.  But, they aren’t the law.  I will give an overview of the dissenting opinions   If you see something interesting in the summary, you can download the decision in PDF format by following the link at the end of the post and read the part that interests you.  The “sound bite” wars that have popped up over this decision have been unflattering for both sides.  If you want to be part of the dialog, take the time to read the decision, including the dissents, and understand both sides.

Chief Justice Roberts.  At 29 pages, Justice Roberts’ dissenting opinion is as long as the majority opinion.  Personally, I found it easier to follow the organization in C.J. Roberts’ dissenting opinion.  Your mileage my vary.  After an introduction similar to Justice Kennedy’s, he begins his argument with the “keystone” Due Process argument used by the majority.  The says that the Solicitor General of the United States, though supporting the Petitioners, “disowned that position [the Due Process Clause argument] before this Court.  The majority, nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.”    He then cites examples of how the approach used by the majority in Obergefell had been used by the Court in the past.  If you read the dissent and are familiar with American legal history, you will recognize some of the cases and, I think, agree that the decisions he cites were later recognized as flawed or just wrong.  He also responds to the “definition of marriage” line of cases like Loving and the “privacy” line of cases, like Griswold and explains why he does not believe they apply in Obergefell.

Justice Roberts raises two points that I plan to talk about in future posts.  The first is that the majority’s reasoning can be applied with equal force to polygamous marriage.  I had also reached that conclusion before I finished reading the majority decision.  The second is that, by resolving this issue through the Court, they have short circuited the process that could have worked out accommodations for religious practice.

Justice Scalia.  Justice Scalia begins his dissent with “I join the Chief Justice’s opinion in full,  I write separately to call attention to this Court’s threat to American democracy.”  He makes a compelling argument and calls the decision a coup.  You may not agree with him, but you don’t need to guess what he is thinking.

Justice Thomas.  Justice Thomas begins his dissent with “[t]he Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation is built.”  There were two points that I thought Justice Thomas made well.  The first is that the focus of the Due Process Clause cases has been to prevent the States from taking rights without due process of law and not to force the States to grant rights as the clause is being applied in Obergefell.  The second is that “the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

Justice Alito,  Justice Alito begins his dissent with “[u]ntil the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.  The question is these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them.  It does not. The Constitution leaves that question to be decided by the people.”

The theme of all the dissenting opinions is that the States have been given the responsibility to define marriage and these cases do not present a constitutional issue.  Again, I encourage you to read them.

As I have said earlier, there are a few more topics I would like to cover, like the application of the case to polygamous marriage and whether their is a need to accommodate sincerely held religious beliefs.  A lot of “sound bite” thinking has surfaced on both sides of the issue.  Folks are trying to ward of using Obergefell to support polygamous marriage.  They would like to see the decision as an “adjustment” in our view of marriage and not a seismic shift.  As you will see, I fall into the seismic shift camp,  Also, it seems clear to me that some of my Christian friends don’t completely understand how this case does, or may, affect their religious freedom.  There has been talk about “civil disobedience.”  Please, don’t start burning anything just yet.  If we will stop shouting and listen, there may be a chance to be part of the discussion.

If you have been reading along and have questions or comments.  Please leave them.  I would also like to know if you have ideas for other topics to cover.

To get to the page of Obergefell resources, including other posts and a link to the opinion, please follow this link.


Obergefell – The Majority Opinion – The Equal Protection Argument and Cleaning Up Loose Ends

In my last post, we covered the keystone argument of the majority opinion.  Justice Kennedy said that, in defining the right to marry, the Supreme Court had identified essential attributes of the right based in history, tradition, and other constitutional liberties inherent in marriage.  He then described each essential attribute and concluded that the attributes applied with equal force to same-sex marriage as to opposite-sex marriage.

While Justice Kennedy says that the decision is based upon both the Due Process and Equal Protection clauses of the 14th Amendment, the Equal Protection argument is given very abbreviated treatment.  My Constitutional Law professor would say that he gave it “short shrift.”   He argues that there is an interrelation of the two protections, each helping to supplement our understanding of the other.  The dissenters were not persuaded by the discussion and I don’t have the expertise in constitutional law to have my own opinion.  He gives several examples of cases in which the two clauses protected different shades of rights or the same rights in different ways.  It is an interesting discussion that most of us will need to take at face value.   The bedrock of the decision is the analysis of the four essentials in the Due Process argument.  When the Court returns to this question again, that is where it will look for guidance.

I will take the final points in the decision out order now, because it will make more sense to conclude the post with the conclusion of the decision.

In Sections IV and V of the decision, Justice Kennedy addresses the second question the Court agreed to answer and three remaining issues that, apparently, had been raised in the oral arguments and over 140 briefs that were filed in the case.  First, he responds to the Respondents’ (the States opposing same-sex marriage) arguments that the issue of same-sex marriage should be returned to the state democratic process for the people to decide.  Justice Kennedy has already responded to this argument in the decision and he simply repeats the response here.  Basically, the Court has found a Constitutional right to marry and a Constitutional right trumps the democratic process.  “This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'”

Next, Justice Kennedy gives a nod to the religious objections to same-sex marriage.  Admittedly, religious belief is not and cannot be a consideration in reaching a legal decision.  But, it is a tender spot that he felt the need to address.  In my opinion, he didn’t address it well.  “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost sincere conviction that, by divine precepts, same-sex marriage should not be condoned.  The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  Or paraphrased, the religious folks also have the constitutional right to continue to believe in their old outdated view of marriage.

While, as a Christian, I appreciate Justice Kennedy’s kind and condescending comments, he misses the point made by the States and emphasized by the dissenting opinions.  The issue of same-sex marriage includes some complicated issues.  I will talk about the issues in detail in later posts. A continued public debate of the question of same-sex marriage through the democratic process would have provided a forum to resolve those issues together.  That discussion has now been cut off and any solutions will need to come through the more expensive and less responsive practices of litigation and legislation.

Finally, Justice Kennedy concludes with a short discussion of the Court’s holding that States must recognize same-sex marriages validly performed out of state.  This was the second question that the Court agreed to take up and the decision follows logically from the finding that there is a constitutional right to marry. But, in the course of his discussion, he feels the need to knock down the States’ argument that “allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages.”  Wait,  What?  REALLY?  Out of all the oral arguments, over 140 briefs and the best legal minds of the country arguing this case, this is the second best argument that Justice Kennedy could find to knock down?  (The first is that the decision should be left to the democratic process, which he knocked down several times.)  He gives this discussion about a page in the decision and I really don’t know what to make of it.  If it is really the second best argument he heard, then the States did a poor job.  It feels like he just wanted to knock down a ridiculous argument and make the Respondents look bad,

This brings us back around to the Court’s finding and holdings.  The Court found “that the right to marry is a fundamental right inherent in the liberty of the person,  . . .”  The Court then applied its finding to the first question it agreed to answer and held that “under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and liberty [the right to marry].”  The Court also held that the Constitution requires States to recognize same-sex marriages validly performed out of State.

In the next posts, we will look at the dissenting opinions.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.


Obergefell – The Majority Opinion – The Due Process Argument – Part 2

We finished the last post as Justice Kennedy set up the next section of his argument in Obergefell.  He explained that the Supreme Court had developed the legal tenets that it used over the years to discover previously unseen constitutional rights.  When the Court applied those tenets to a case in 1972, the Court did not believe that same-sex marriage presented any federal question for it to consider.  But, as Justice Kennedy went on to explain,  “[s]till, there are other more instructive precedents.  This Court’s cases have expressed  constitutional principles of broader reach.  In defining the right to marry, these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”].  And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”

As we move into a discussion of these four principles, there are two questions to ask yourself as you read.  The first is whether you agree that the Court has identified principles that are central to our definition of marriage.  Second, do you agree with Justice Kennedy that the principles “compel the conclusion” that same-sex couples may exercise the right to marry?  This is a summary of the four principles.

  1. “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy . . . decisions about marriage are the most intimate that an individual can make.” In light of Justice Kennedy’s introductory discussion of the history of marriage, changing from arranged relationships to relationships based romantic love, it is difficult to argue with this conclusion.  It is an accurate reflection of our culture’s current view of marriage.
  2. “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”   Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.
  3. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education. The rights and responsibilities associated with marriage are an important foundation for the family that is created by the relationship.
  4. Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.  Webster defines “keystone” as  the wedge-shaped piece at the crown of an arch that locks the other pieces in place.”  So, applied here, marriage is one of the institutions that locks our social order in place.  Justice Kennedy also quotes Alexander de Tocqueville, who said that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress. . . . For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. . . .These aspects of marital status include: taxation [at special rates]; inheritance and property rights; rules of intestate succession [what happens when a spouse dies without a will]; . . . hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates . . .” and the list goes on.

He concludes this section by finding that, In exchange for people’s commitment to enter into marriage, “[t]he States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.”

So, if we put together the reasoning from the four points that Justice Kennedy has enumerated, we have this argument:

  1. Two people who love each other have the Constitutional right to decide if they want to live in a committed relationship.
  2. Marriage is uniquely and specially designed to support the union of two people who want to live in a committed relationship.
  3. Marriage as an institution safeguards the other rights and responsibilities that flow from the committed relationship, like children and families and the long list in the quotation above.  All of which are critical to our society,
  4. Because marriage is critical to our society, society has pledged to give certain special rights and benefits to those who enter into the marriage relationship.

Justice Kennedy begins his conclusion to this section by stating “[t]here is no difference between same- and opposite- sex couples with respect to this principle [The principles are equally valid and will accomplish their purpose of ultimately strengthening society regardless of the gender of the parties is the marriage.]  Yet, by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.”  He then explains that “the limit of marriage to opposite-sex couples may long have seemed natural and just. but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”  These words underline what he has said before in the decision; marriage is a right that is endowed by the Constitution upon every citizen of the United States and the individual States may not limit the right only to same-sex couples.   He recognizes that people acting on “decent and honorable religious or philosophical premises” have passed laws excluding same-sex couples from the same legal treatment that opposite-sex couples receive in marriage.  But, because those laws conflict with the fundamental Constitutional right to marry, they cannot stand.

To borrow from Justice Kennedy’s “keystone” argument above, the application of these four principles to same-sex marriage is the keystone of the majority decision.  All that has led to this analysis is setting the stage and all that follows is cleaning up the loose ends.  If another individual challenges whether a state has unconstitutionally denied the him or her the right to marry, one would expect the Supreme Court to us this set of principles to analyze the claim.

In the next post, we will review Justice Kennedy’s Equal Protection argument supporting same-sex marriage, cover his concluding comments and observations, and finish the discussion of the majority opinion.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.



Obergefell – The Majority Opinion – The Due Process Argument

My goal is writing this series of posts on Obergefell is to share what I am thinking about the decision and what its effects might be.  I definitely don’t have a better understanding of the law in this area than the Supreme Court.  And even they can’t agree on what law applies to this issue and how it applies.    I hope that you will read these posts, read the decision, think about its implications and leave questions and comments.

After setting the historical background discussed in the prior post, Justice Kennedy begins the Court’s legal analysis.  It is here that I had my first question about the structure of the argument that Justice Kennedy is forming.  Is his introduction the background for the decision or the foundation for the decision?  If it is a background, then, like the background in a painting, its purpose is to put the main subject in context, but it doesn’t provide critical information.   I think the introduction is more foundation than background.  He seems to mix together the developing social theories on marriage and sexuality with past Supreme Court case law like he is mixing concrete.   The parts of law and sociology that are permitted into the foundation are filtered by the “principles” set out in the introduction.  I say this because the points he raises in the introduction appear again in the body of the decision.

The Due Process Argument

[As I write these posts, I will be quoting sections of text from the decision.  Rather than using block quotations, which would be formally correct, I will put the quoted text in blue and use quotation marks.]

Justice Kennedy begins section III of the majority opinion.

“Under the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’  The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights [the decision cites the Griswold case here]. In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs”  The 1965 Griswold case cited by the court struck down a state law forbidding a married couple to use birth control.   At the time, Griswold was seen as an expansion of the Due Process clause.  But, Griswold, was an expansion that most American’s accepted.  I don’t know that American married couples knew they had a constitutional right to use birth control in 1965.  But, I am guessing they welcomed the information as good news.

Justice Kennedy uses the Griswold case as an example of when the Court identified a new fundamental right that had not previously been recognized.  Justice Kennedy goes on to say, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.  That responsibility, however, ‘has not been reduced to any formula.  Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”  To paraphrase, just as the Supreme Court identified the previously unknown right to use birth control,  it has an ongoing duty to keep finding previously unidentified rights.  Further, there is no magic formula for how these rights are determined, but the Court must use its best judgment to figure them out.  And, when the Court has found a fundamental right, the State must accept the right as being constitutional and, therefore, invalidating any state law that conflicts with it,

The Court then explains that it has, over time, developed some tenets. or guidelines, of constitutional interpretation that it uses to identify these previously unseen rights.  When these tenets are applied to marriage generally, the Court has found a constitutional right to marry.  The Court has found that the right to marry cannot be “burdened” (prevented) for certain reasons, for example, because a father is behind in his child support payments or because one of the people wanting to be married is in prison.  But, the Court, like many institutions, had “made assumptions [about marriage] defined by the world and time of which it is apart,”  and in 1972 found that the exclusion of same-sex couples from marriage did not present a substantial federal question.  In other words, in 1972,  the Supreme Court didn’t think that applying the above-referenced tenets of constitutional interpretation to the topic of same-sex marriage would yield any previously undiscovered rights.

But, as Justice Kennedy explains, the trail didn’t end in 1972, “[s]till, there are other more instructive precedents.  This Court’s cases have expressed  constitutional principles of broader reach.  In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond [he means “marriage”].  And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected.”  Justice Kennedy is referring here to the four principles of marriage that will follow next and round out the Due Process section of his argument.  He says that, when these four principles are applied to same-sex marriage, “[t]he analysis compels the conclusion that same-sex  couples [emphasis added by me] may exercise the right to marry.  The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples [emphasis added by me again].”

As we move into a discussion of these four principles in the next post, there are two questions to ask yourself.  The first is whether you agree that the Court has identified principles that are central to our definition of marriage.  I am not a constitutional law scholar.  You probably aren’t either.  But, you and I can both read these principles and ask if they make sense to us.  The second question to ask yourself is whether the four principles necessarily apply only to “couples.”  Is Justice Kennedy suggesting that there is something mystic  or special about two people in a marriage relationship?  Or, is it just that the question before the Court, and therefore the only question the Court can answer, is limited to couples?

I have tipped my hand, so this is a spoiler alert.  You can read the Court’s holding at the bottom of page 22 of the Majority Opinion.  Did you find the word “couple?” in the Court’s conclusion that marriage is a “fundamental right”?  I didn’t either.  The word “couple” is used in the two holdings that follow because, in this case, the Court was only addressing the question of whether there was a constitutional right that applied to couples.  So, what happens when the Court gets a case asking if the fundamental right to marriage is available to polygamists?  Stay tuned for Justice Roberts dissenting opinion.

Please leave comments and questions.

Please click here to get to the landing page for earlier posts on Obergefell and other resources.


Obergefell – Majority Opinion – Part 1

If you have read the first two posts in this series, you know that Obergefell is the recent U.S. Supreme Court decision legalizing same-sex marriage.  If you haven’t read the first posts in the series, I have set up a landing page with links to the earlier posts and a link to a PDF version of the decision.  If you are interested in this discussion and keep reading along, it will help you if you have a copy of the decision to read sections when I refer to them.  You can find the link page here.

I need to talk about one more thing before we begin.  The Court uses the term “homosexuality” when describing the sexual orientation of people who are gay and lesbian.  I’m not comfortable with the term for two reasons.  First, my classmates in college who were lesbian objected to being called “homosexual.”  They believed that the “homo” in homosexual was used in the same sense as the “homo” in homosapien.  Therefore, it was a term that should be used only to describe men.  The correct term for women was lesbian.  I know that “homo” in homosexuality really means “similar” as in a homogenous group.  But, they made a big impact on me and I have carried that sensitivity for decades.  Second, though the word “homosexual” began as a clinical term to describe same-sex attraction, it has taken on a derogatory sense.  Maybe I am being overly sensitive and politically correct, but I promised to be honest with you. That is all to say that I will use the word “homosexual” throughout my posts on the case because the Court uses the word in the various decisions.   I’ll deal with my personal discomfort and if you are offended by the word, I apologize and at least you know that I don’t mean to use it offensively.

The majority opinion was written by Justice Kennedy.

Section I of the decision sets up what is called the procedural posture of the case.  The Court explains briefly how the 14 cases came to the Court and the two questions that the Court has agreed to answer.

Section II gives some historical background.  Justice Kennedy begins by saying, “Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.”  He then begins a seven-page survey of society’s understanding of marriage and society’s understanding of homsexuality. He says of marriage that “[t]he lifelong union of a man and a woman has always promised nobility and dignity to all persons without regard to their station in life.”  He admits that, “historically, marriage has been the union of two people of opposite sex.  That history is the beginning of these cases,  The respondents [the States arguing that marriage should remain a union between people of opposite sex] say it should be the end as well.”

Justice Kennedy then talks about the States’ assertion that it would demean the timeless institution of marriage by extending the status to two people of the same sex.  He says that, far from wanting to devalue marriage, the petitioners [the 14 people who want the law changed] seek marriage for themselves because they respect – and need – the privileges and responsibilities that marriage carries with it.”  He concludes this section of the introduction by telling the stories of three sets of the 14 petitioners.

James Obergefell and his partner. Arthur, lived in Ohio.  Arthur was diagnosed with ALS in 2011 and they decided to marry before Arthur died.  They travelled to Maryland for the ceremony, which was difficult for Arthur because of his medical condition.  Three months later, Arthur died.  Ohio law does not allow James to be listed as the surviving spouse on Arthur’s death certificate and, as Justice Kennedy says it, “By statute, they must remain strangers even in death, a state-imposed separation that [James] ‘deems hurtful for the rest of time'”

April and Jayne are co-plaintiffs from Michigan.  They are both neonatal nurses and, between them, they have adopted three children.  But, the state of Michigan only allows adoptions by married couples and single people.  In Michigan, same-sex couples are not allowed to marry, so each child can be adopted by only one of them as his or her legal parent.  Justice Kennedy explains that this situation could cause a problem in emergency situations where a school or hospital may treat the child as having only one parent who could make medical decisions.  Further, if one of the women were to die, the other would have no legal rights over the children that she was not permitted to adopt.

Finally, Ijpe DeKoe and his partner Thomas Kostra are from Tennessee.  Ijpe is in the Army Reserve and was deployed to Afghanistan in 2011.  They were married in New York before his deployment.  When he returned, they settled in Tennessee where Ijpe works for the Army Reserve.  Tennessee does not recognize the couple’s New York marriage and, as a result, Justice Kennedy says  “[T]heir lawful marriage is stipped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines.  DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.”

Justice Kennedy then discusses the deep changes that have occurred in our understanding of marriage over the past centuries,  Marriages were at one time arranged relationships.  They became relationships where the couple was treated by the state as one male-dominated entity. Over time, we have seen that women are an equal partner in marriage.  Finally, we have seen that marriage is based on romantic love.  He says that these are new insights that have resulted in a deep transformation in the structure of marriage.

He closes the introduction with a brief description of society’s changing attitudes toward homosexualty.  He explains that society now understands that sexual orientation is an immutable characteristic and a normal expression of human sexuality.  The legal standing of homosexuals has similarly changed over this time.  At one time, intimate relations between two people of the same sex was a criminal offense.  The laws have changed and homosexuality has entered the main stream.  Those are my words, not his, but I think they reflect the point that he is trying to make.

It is against this changing understanding of marriage and of sexual orientation that the legal question about same-sex marriage has come up.  Some State legislatures (or state Supreme Courts interpreting the state’s constitution) have legalized same-sex marriage.  Other states have not.  Numerous cases about same-sex marriage have reached the Unites States Courts of Appeals in recent years and the appeals courts have reached different decisions about the legality of same-sex marriage.  This “split in the circuits” as it is called, gives the U.S. Supreme Court the authority to hear these cases and issue a decision that will unify the courts.  Also, he notes that the states are still divided on the subject of same-sex marriage even though they have had years to try and work it out.

It is against this background that Justice Kennedy begins his legal analysis and I will begin covering his legal analysis in the next post.  Thank you for reading along.  Please leave me comments and questions.