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Ten things you need to know about the U.S. Supreme Court “gay marriage” case being heard April 28, 2015

On April 28 the US Supreme Court case will hear oral arguments for the case that will essentially decide whether “gay marriage” is a previously unknown “fundamental right” enshrined in the US Constitution, similar to the Court’s 1973 abortion ruling.

The US Supreme Court building will be ground zero for the latest assault on the nation’s culture.

What was once a fringe, unthinkable idea is now on the verge of being imposed on the entire nation.

What is happening? Here are ten things to know about this case:

1. How we got to this point

The popular sentiment against “gay marriage” in the United States has been overwhelmingly one-sided at the ballot box. Since 1998, 30 states have passed constitutional amendments banning it. Some of these amendments were passed by huge margins (as high as 80%). This appeared to everyone to be an insurmountable obstacle to the “gay marriage” movement.

After losing in state after state, the homosexual movement realized that it could never overturn these amendments legitimately. In very blue states, using massive amounts of money, they were able to successfully lobby legislatures and sway elections. But the amendments across the country were a problem.

So they decided to focus on perfecting the strategy that worked in Massachusetts in 2003: using the courts and hand-picked activist judges, along with very shrewd manipulation of the legal process and well-funded legal teams and political strategists. They crafted a plan to get the state amendments declared unconstitutional.

This strategy took advantage of the LGBT lobby’s well-funded propaganda push over the last few decades in law schools, law firms, and judicial chambers, as well as a fresh new generation of radical federal judges appointed by Barack Obama.

Starting with California in 2009, where a homosexual judge overturned the Proposition 8 vote, they soon picked up momentum. Across the country, the various cases began sailing through the state and federal courts largely unimpeded. It was quite frightening for all of us to watch.

Other factors helped keep it going. The almost universal unwillingness of the legal teams on the pro-family side to aggressively confront the other side’s arguments gave them a free pass on what could have been difficult issues to overcome. And a number of pro-gay “marriage” Democrat (and RINO Republican) Governors and Attorneys-General simply refused to properly defend the cases and/or appeal them after losing.

Using both state and federal courts, the LGBT lobby has now gotten activist courts to “overturn” 26 of the 30 state constitutional amendments. (Some of these cases are still being appealed.)

But on November 6, 2014, their string of successes hit a snag, as the Sixth Circuit Court of Appeals ruled in favor of the Ohio constitutional amendment. However, since this disagreed with the other Federal District Court rulings, it bumped the case up to the Supreme Court, which agreed to hear it and make a broad decision.

2. How the 14th Amendment is used to push the radical agenda in the courts

In all these cases (as in countless other “progressive” legal challenges over the years) the radicals have used twisted interpretations of the US Constitution’s Fourteenth Amendment to advance their agenda through the courts.

The Fourteenth Amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The “due process” and the “equal protection” clauses are the hammers used to smash the existing laws and constitutional amendments. Along with that, the LGBT lawyers start with the assumption (which our side does not refute) that “sexual orientation” constitutes a class of citizen (based on an immutable characteristic, etc).

Regarding the “equal protection” argument: They argue that “gays” are not allowed to marry the ones they love, but heterosexuals are. They say that “gays” are thus “demeaned,” made “second class citizens,” and kept “unequal” – and this causes them terrible harm.

They further argue that not recognizing “gay marriages” from other states is a violation of due process because of the Constitution’s “full faith and credit” clause.

Of course, this is all legal nonsense. The answer to their “equal protection” argument is simple: Under the law, every person can only marry someone of the opposite sex. The marriage laws apply to every person equally. No legal expert we’ve consulted has disagreed with us on that reasoning. And everyone gets the same “due process” under it. Unfortunately, to our knowledge these points are rarely used to buttress our side’s argument.

Furthermore, the “full faith and credit” clause was never meant to be used to alter the meaning of the word marriage (i.e., plural marriages, incestuous marriages, marriages to young children), but only the application to a marriage case (or a divorce, etc.,) where the meaning of the word marriage was commonly agreed upon. It’s pretty simple – unless you’re an activist judge.

3. What this case is specifically meant to decide

The case is officially named Obergefell v. Hodges, which is a consolidation of four “gay marriage” cases previously brought before the Sixth Circuit.

According to the court documents, this case addresses only two specific questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

On April 28, a total of 90 minutes is allotted for oral argument on question #1, and a total of 60 minutes is allotted for oral argument on question #2. As discussed above, in any normal circumstance this would be a no-brainer.

Not surprisingly, there have been dozens of amicus briefs filed for this case. (You can read them here.) Most of those filed by our side discuss the importance of marriage in society, the historical roots of marriage, how imposing “gay marriage” would divide the country, children needing a father and a mother, etc. None that we’ve seen actually addresses the two questions regarding the Fourteenth Amendment which this case is about. We can only surmise that people are assuming that the Justices are not actually focusing on strict constitutional law but on these unrelated issues.

4. The lawyers arguing this case on April 28

The competition to represent the pro-family side was definitely not as intense as for the “gay marriage side.”

Arguing for the pro-family side:  Eric E. Murphy is the current Ohio State Solicitor, who won the appeal before the Sixth Circuit after losing in District Court. John J. Bursch was Michigan State Solicitor from 2011-2013 and has argued eight times before the US Supreme Court. According to news reports, Bursch’s current firm, Warner Norcross & Judd, supports “gay marriage” and has refused to be involved in this case to help him.

Both attorneys have a good reputation for competence.

Eric E. Murphy, State Solicitor
Office of the Attorney General
30 East Broad Street, 17th Fl.
Columbus, OH  43215-3428
(614) 466-8980
eric.murphy@ohioattorneygeneral.gov

John J. Bursch
Michigan Dept of Attorney General
P.O. Box 30212
Lansing, MI  48909
(517) 373-1124
BurschJ@michigan.gov

Arguing for the homosexual “marriage” side:  Alphonse A. Gerhardstein is a prominent civil rights attorney from Cincinnati. Mary Bonauto is the celebrity lesbian attorney for Gay and Lesbian Advocates and Defenders, who won the original Goodridge “gay marriage” case in Massachusetts in 2003. We at MassResistance know Bonauto well. She argued the lawsuit against us (unsuccessfully) in the infamous “Fistgate” case, and we have debated her on television.

We don’t know much about Gerhardstein. In our opinion, Bonauto is not particularly impressive.

Alphonse A. Gerhardstein
Gerhardstein & Branch Co. LPA
432 Walnut St., Suite 400
Cincinnati, OH  45202
(513) 621-0779
agerhardstein@gbfirm.com

Mary L. Bonauto
Gay & Lesbian Advocates & Defenders
30 Winter Street, Suite 800
Boston, MA  02108
(617) 426-1350
mbonauto@glad.org

(Contact information is from Supreme Court filings.)

5. Anticipated problems with our side’s arguments

The other side’s arguments rarely bother dealing with the strict constitutional meaning of the text in question. They are almost exclusively based on the assumption that “sexual orientation” constitutes a legitimate legal “class” of people who are “born that way,” and as such have innate rights as a “class.” The concept of a “class” of people is foreign to the text of the Constitution. But it has nevertheless been accepted by courts for decades and undoubtedly by a number of the Supreme Court Justices.

That concept must be vigorously confronted and debunked. Unfortunately, our lawyers have been afraid to do that. Instead they concede to it and attempt to make a persuasive argument within those absurd boundaries — i.e., every child needs a mother and father, marriage is an institution for procreation, etc. This strategy almost always fails.

Why does our side avoid a strong argument? The answer falls into two categories:

1. Fear of being accused of “animus.” Our lawyers have internalized the idea that any perception of “animus towards gays” in their arguments will alienate the Justices. After all, gays are a “class” of people. This forces out any discussion of anything that debunks that, such as the horrible medical consequences associated with homosexual behavior: diseases, addictions, mental health problems, domestic violence, lower life expectancy, etc. Or any suggestion that is an immoral, unnatural perversion. Or the proven damage to children raised in same-sex households.

2. Pandering to “rational basis.” There is an extra-constitutional concept that judges have the authority to overturn a law if it doesn’t appear rational to them. Whether or not it was “rational” to a legislature or to the people makes no difference. Thus, the LGBT lawyers simply state that it’s “not rational” to exclude the class of “gays” from marrying whomever they want. It’s been one the basis for overturning constitutional marriage amendments. Our lawyers fear being judged “irrational” if they bring up the uncomfortable aspects of homosexuality, so they stick to the “comfortable” arguments.

It’s about time to quit doing what doesn’t work. Our fear, unfortunately, is that the lawyers on our side have been working closely with pro-family establishment lawyers in Washington DC (and we all know who they are) who are anything but aggressive or confrontational on these issues.

6. When the Court will issue a decision

The Court will issue its ruling before its current term ends in late June – i.e., within two months.

7. Why Justices Ginsburg and Kagan must legally recuse themselves from this case

Federal law 28 U.S. Code § 455 states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

In the past year Justices Ruth Bader Ginsburg and Elena Kagan have performed same-sex “weddings.”  Ginsburg told people that the acceptance of same-sex “marriage” reflects “the genius of our Constitution.”

Kagan’s aggressive advocacy for LGBT “rights” goes back to her years as Dean of Harvard Law School (2003-2009), and is thoroughly documented in our MassResistance report.

Ginsburg and Kagan are unquestionably biased on this issue and by law mustdisqualify themselves from this case. Failure to do would call into question the legitimacy of the (feared) ruling on this case, at the very least. Furthermore, a near-universal interpretation of the Fourteenth Amendment’s “due process” clause(above) includes the right of impartial court proceedings. Having biased judges violates that.

Motion for Recusal. We have been informed that Attorney Andy Schlafly (son of Phyllis Schlafly) has drafted a Motion for Recusal, under section 28 USC 144,which will be filed by one of the state Attorneys-Generals in Ohio, Tennessee, Michigan or Kentucky who have standing in the case.  According to Mr. Schlafly, “This will be the first time in the history of our country that a Motion for Recusal will have been filed against U.S. Supreme Court Justices because the above codes are for Federal District Judges, yet the principle of recusal can be expanded to all federal judges including Justices of the U.S. Supreme Court.”

8. Bill filed in Congress to remove the Court’s jurisdiction on marriage

It is possible for Congress to restrict the Federal Courts from hearing certain types of cases.

Article III, Section 2 of the US Constitution gives Congress the ability to restrict the jurisdiction of the Supreme Court and federal courts:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In the case of marriage, this probably should have been done at least a decade ago. However, this past week, some action was started.

Rep. Steve King, (R-Iowa), filed a bill to block the federal courts, including the U.S Supreme Court, from hearing or deciding cases involving the definition of marriage.

Rep. King’s bill is titled Restrain the Judges on Marriage Act of 2015. “This bill strips federal courts of jurisdiction to hear cases related to marriage. The effect of the bill would prevent federal courts from hearing marriage cases, leaving the issue to the States where it properly belongs,” said Rep. King on his website.

Will the RINO Republican leadership in the US House and Senate go along with it? We will see. And then Obama must sign it …

9. The latest in the Court’s long history of illegitimate usurpation of power

The problem of the federal courts acting as unelected rulers — contrary to the intent of the Constitution — is not new. In 1861, in his first Inaugural Address, Abraham Lincoln condemned the Supreme Court’s power grab then:

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 instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers having to that extent practically resigned their government into the hands of that eminent tribunal.

Over the last several decades it’s only gotten further out-of-control.

In 2005, the Hoover Institution published a paper by Lino Graglia, a law professor at the University of Texas, titled “Constitutional Law without the Constitution: The Supreme Court’s Remaking of America” that described it very well. An excerpt from that article:

The central fact of contemporary constitutional law, however, is that it has very little to do with the Constitution. Nearly all the Supreme Court’s rulings of unconstitutionality have little or no basis in, and are sometimes in direct violation of, the Constitution. Their actual basis is nothing more than the policy preferences of a majority of the Court’s nine justices. The power to assert that the Constitution prohibits any policy choice of which they disapprove has enabled the justices to make themselves the final lawmakers on any public policy issue that they choose to remove from the ordinary political process and to assign for decision to themselves. Over the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death, as in the Court’s decisions on contraception, abortion, capital punishment, and assisted suicide; issues of public order, as in its decisions on criminal procedure, public demonstrations, and vagrancy control; and issues of public morality, as in its decisions on pornography and homosexuality. These are the issues that determine the basic values, nature, and quality of a society. In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system: voting takes place and representatives of the people are elected as lawmakers, but the decisions they reach on basic issues of social policy are permitted to prevail only so long as they are not disallowed by the system’s highest authority.

That’s what we’ve been up against: Nine justices appointed for life who have made themselves the unelected legislators over us all.

10. Immense pressure from the homosexual movement

It’s difficult to describe the enormous amounts of money and sophisticated planning, political maneuvering, and pressure tactics that the homosexual lobby has used in this nationwide march through the federal courts. Millions of dollars have flowed to them from major US corporations and wealthy donors.  Adding to that is the flood of major media support (including even FOX News!) that the LGBT movement enjoys. Needless to say, it’s unbelievably one-sided.

On the other hand, most wealthy conservative donors have made their peace with the LGBT movement and have abandoned their support at a time when it’s needed most. And virtually no corporations donate money to the pro-family side of this issue.

The LGBT movement has used its resources and power very aggressively. In just the last several weeks, hundreds of corporations and high-profile politicians, including Republicans, have publicly told the Supreme Court that they want “gay marriage” imposed on America by the judiciary. Virtually the nation’s entire legal community now refuses to even engage cases involving challenges to “gay marriage” — an unprecedented turn of events.

Will this push a majority of the Supreme Court Justices over the top? In any other time in history, this case would have been laughed out of any courtroom. So anything is possible.

What do we do next?

By any objective measure, this whole case is a mockery of actual Constitutional law. Yet, the odds are that Ginsburg and Kagan will not disqualify themselves and enough of the rest of the judges will rule to force this insanity on all of America — and which among other things will surely lead to the further persecution of people of faith.

Should the worst happen, we’ll certainly have it rubbed in our faces as quickly as possible. As happened in Massachusetts in 2003, the first thing we will see will be adolescent screams of joy and jumping in the streets by the homosexual radicals, celebrated spectacularly in the mainstream media.

But what about our side? We have to fight back, that’s for sure.

What does that mean? There has been a lot of talk about pro-family “civil disobedience” and “taking to the streets.” But let’s be honest. When the Left threatens civil disobedience the local police schedule double shifts (often to protect them). But when we do it, nobody really pays attention. To most conservatives civil disobedience is not mowing your lawn for three weeks or posting strong articles on FaceBook – not exactly rioting.

And the legal system will surely come down even harder on anyone disobeying the new rulings, as well as state and local non-discrimination ordinances.

MassResistance has some ideas. But let’s hope the worst doesn’t happen.

Judgement Day: Pro-Israel Z-Street trial “Will Force the IRS to Open its Books”

In the August 2013 New English Review (NER) we interviewed Lori Lowenthal Marcus, national correspondent for The Jewish Press and co-founder of Z Street- the Zionist antidote to anti-Israel J Street.  It was about the July 19, 2013 hearing held before Judge Ketanji Brown of the DC Federal  Court in the matter of Z Street v IRS. The case had been filed in the Eastern District in Pennsylvania and then transferred  to the DC Federal court as this was a federal government matter. The original Z Street matter was based on a First Amendment issue, “viewpoint discrimination”. In our NER interview article we noted what the basis of the original filing was about:

news release by Z STREET, issued  just prior to the DC court proceeding cited the June 24, 2013 House Ways and Means release of acting IRS Commissioner Danny Werfel’s responses to a letter from Ranking  Member, Sander Levin (D-MI). Z STREET’s supplementary filing revealed that there were no “progressive” groups scrutinized by the IRS “Touch and Go” Group (TAG) in Washington, DC. Instead due diligence of the IRS documents revealed that Z STREET was the sole subject by the TAG review because of “Israel-connected” views of the group in its original 501 (c ) (3) application.   

We further noted the contretemps at the July 19, 2013 DC federal court hearing:

Alana Goodman of The Washington Free Beacon who attended the DC Federal Court hearing noted in her report the IRS argument and the reaction of Judge Brown:

The government argued in court on Friday that Z STREET should resolve its tax-exempt status, which is still in limbo, before any policy questions can be addressed.

Judge Ketanji Brown Jackson seemed skeptical of the argument, saying that the government appeared to be mischaracterizing the remedy that Z Street was seeking.

“That’s not what they want,” Judge Jackson snapped at one point.

Z STREET said the government was misrepresenting its position.

“We’re not seeking tax-exempt status in this case. We are seeking an untainted process,” said Counsel Jerome Marcus. “What is the policy that the IRS has been following since 2010, and is that process constitutional?”

Is the Z Street case against the IRS evidence of bureaucratic ineptitude or something else? If discovery is granted by the DC Court ruling we may find who and why an unconstitutional act of viewpoint discrimination was perpetrated against STREET.

Today’s Wall Street Journal reported Judge Katanji Brown ruling effectively granting discovery to Z Street, “IRS Judgment Day: The un-talkative agency comes under scrutiny from a federal judge”:

In August 2010, Z Street sued the IRS on grounds that the position amounts to viewpoint discrimination and violates the First Amendment. The IRS responded by claiming special protections, including the Anti-Injunction Act, a law written to protect the IRS from litigation that could interfere with its ability to collect revenue.

But Washington, D.C. federal district Judge Ketanji Brown Jackson ruled that the Anti-Injunction Act has not been interpreted by the courts as preventing constitutional claims. In its attempt to “thwart” the action, she wrote in denying the IRS motion to dismiss, the IRS tries to “transform a lawsuit that clearly challenges the constitutionality of the process . . . into a dispute over tax liability.”

The IRS also tried to duck out under the sovereign immunity doctrine, which was designed to deter lawsuits against the feds. But that claim fails, Judge Jackson writes, because the Administrative Procedures Act “waives sovereign immunity with respect to suits for nonmonetary damages that allege wrongful action by an agency or its officers or employees, and the instant lawsuit fits precisely those criteria.”

This ruling will force the IRS to open its books on the procedures it used and decisions it made reviewing Z Street’s tax-exempt application, procedures it has tried to keep shrouded. As the case proceeds, Z Street’s attorneys can seek depositions from many who have been part of the larger attempt to sit on similar applications by other conservative groups.

It will be fascinating to see which names— Lois Lerner, former head of IRS tax-exempt scrutiny?—show up in the internal email traffic. The Administration may have a harder time evading accountability now that a judge will be supervising the testimony.

In our NER interview with Ms. Marcus, we asked her what the best outcome that might emerge with Judge Ketanji’s ruling.  Here is the exchange:

Gordon:  What do you believe would be the best outcome of the D.C. Federal Court after its review of the various filings in terms of handing down a ruling in this case?

Marcus:  Naturally, I think the court should sign the proposed Order that we submitted and provide us with access to what is called discovery. Meaning we are permitted to seek information about how the IRS set about creating this policy, who formulated it, who approved it, who knew about it, who had to apply it, to whom was it applied. That is what we need to find out in order to learn how the IRS came to create policies that are not just inappropriate, not just mismanagement, but which constitute violations of the U.S. Constitution. We need to find out because unless we do, there are going to be greater and greater restrictions on fundamental freedoms.

Way to go Judge Brown.  Now the IRS has no shield against discovery by Z Street. This could an interesting turn of events vis a vis the original viewpoint discrimination issue raised in the Z Street Federal court filling.  Whatever names emerge on the BOTL emails might cause  a flood of filings from other possible social welfare filers. As baseball great Yogi Berra might opine, “It ain’t over till it’s over”.  Congratulations to Lori Lowenthal Marcus and her counsel, her husband Jerome, for undertaking this landmark case for Z Street and all Americans. Let’s see how the IRS counsel  responds  to Judge Brown’s ruling.

As a Z Street board member this federal court ruling has justified the four year wait for justice to be done in the matter. To paraphrase Justice Brandeis Judge Brown’s ruling is good “disinfectant”.

EDITORS NOTE: This column originally appeared on The New English Review.