Letter to the Editor for "The Supreme Court is Not Supreme"

In 2015, I wrote an extensive article for Townhall.com decrying the abortive, egregiously wrong decision Obergefell v. Hodges.

I received two responses, one which was very positive and thank me for giving hope in the face of this judicial travesty.

Thank you so much for this article! I have been downright depressed over this decision. Your column gives me hope.

--Arthur Webb

And another, a long-winded answer from a very emotional writer determined to justify something which neither natural law nor constitutional law could support.

Here's the extensive response from Mr. David Frazier:

Hey Arthur:

You acknowledge the role of judicial review, but then you say, "The Supreme Court is not the final authority. We the People are." To be sure, if the people wish to pass a constitutional amendment and repeal the 14th Amendment we certainly have the right and the power to attempt to do so. However, I don't see that happening. In order to be "a full member of society", the individual must be afforded all of the rights, benefits, and opportunities that are extended to all other individual members of society at large. As you know, the marriage bond extends beyond the physical relationship. It's a life-time partnership united by chemistry, i.e., love, mutual respect, and self-sacrifice towards that partner and shared goals. Accordingly, every Western culture has always extended special privileges to marital spouses--hospital visitation privileges, inheritance rights, Social Security benefits, insurance benefits, tax credits, owning homesteads and other assets as joint tenants with right of survivorship, enhanced opportunity to qualify for the adoption of minors, etc. In my own state of Mississippi, same-sex couples are specifically prohibited by statute from being eligible to adopt minor children. This is not just an equality issue. Rather, it goes to the "liberty" right of the individual to live his life "as God intended" as a fully functioning member of society.

 The fundamental error in this line of thought is that marriage is not a right. It's a sacrament, a covenant, an institution. People do not have a "right" to marry, because marriage is the life-long union of one man and one woman, i.e. the sacrament involves two people, and those two people need to consent to the covenant.

Furthermore, marriage requires witnesses and the consent of those witnesses. Most people tend to skip over the declaration for the officiating minister during the wedding ceremony, but those words matter: "Should anyone present know of any reason that this couple should not be joined in holy matrimony, speak now or forever hold your peace."

A right cannot be refused someone simply because someone objects, but marriage can face objections. Marriage is a sacrament, a covenant, not a right. 

Furthermore, the fact that David Frazier writes about "privileges" proves my point: marriage is not a right.

Last of all, marriage is not about liberty. Justice Scalia made this point rather wittingly when he wrote: "Ask any hippie."

You state that homosexuality is "unnatural". I have known several members of the LGBT community very well over my 61 years. I have a first cousin who has been with his partner for 35 years. Having known my cousin grow up over the years from a small child into adulthood, I can tell you that "being homosexual" is completely "natural" for him. As a dedicated theist, I assume that you believe that God is a perfect, loving god, responsible for the oversight of all of His creation. However, it also is undisputed in the scientific community that the "cause" of homosexuality in its "pure-congenital" form is a matter of nature. Therefore, the ethical question must be addressed--"Would a truly loving and all knowing god create in the womb a whole segment of human beings destined to be perceived as unnatural deviants, and therefore to be treated as social outcasts?" Even if you throw evolution into the mix and believe that for whatever reason, "pure-congenital" homosexuality is a biological mutation which occurs randomly in the womb, it nevertheless is a natural occurrence. Therefore, to continue to deny gays and lesbians the right to marry would be tantamount to the State denying people with "other" genetic mutations the right to wed or procreate when there is an absence of a compelling state interest. Clearly, that would be illegal and unconstitutional.

This paragraph is built on a throne of lies.

No, people are not born gay. The growing body of research confirms this. A recent study, summarized by Nature.com, reveals that following a longitudinal study of 500,000 people, they found no evidence of a gay gene.

As an attorney, sometimes one of the most difficult points to get across to nonlawyers is that there is a distinction between what is the proper or legal pursuant to the rule of law, and what is politically correct or popular. With the passage of the 14th Amendment to the U.S. Constitution the Equal Protection Clause exemplifies my point. When someone is a member of a protected group, or of a suspect classification which has been historically discriminated against, or if a fundamental constitutional right is involved where it is claimed that the right (like marriage) is being denied, then the government must demonstrate a "compelling state interest" that the needs of the state outweigh the needs/rights of the individual if the law, regulation, policy, practice, custom, or procedure is going to pass constitutional scrutiny. This is a very high standard, which the government, in only the most extreme cases is able to meet. Even if a fundamental right is not involved, the state's purpose in promoting denial of equal protection must be "rational."

The Fourteenth Amendment was not written to allow sexual deviants to marry whomever they wanted to. The Fourteenth Amendment merely asserted that the Bill of Rights extends to all citizens, and that the states were bound to the Bill of Rights, too, as well as the federal government. As a non-lawyer, I am surprised that I understand this issue better than the lawyer who wrote this letter to me.'

As for "compelling state interest," yes indeed the state has a compelling interest to retain the natural definition of marriage as such. Children need their mother and father. Stable societies need strong families in order to survive, and they cannot survive if the family is disintegrated or destroyed. Besides, marriage is a proclaimed public covenant, which requires a record of recognition before the state. Yes, the state has a compelling interest in marriage.

With all the talk about "equal protection," marriage is available to every individual, provided that they find a partner of the opposite sex who wishes to marry that individual. There is no violation of equal protection.

The "Equal Protection Clause" of the 14th Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Following Reconstruction, the Jim Crow South, in an effort to comply with the EPC, implemented with success, the policy of "separate but equal" in order to preserve racial segregation and the appartied system of the day. In a strict application of the "original meaning" of the EPC, the U.S. Supreme Court held in the 1896 case of Plessy v. Ferguson that the EPC permits state-sponsored segregation. It was not until 1954 in the landmark case of Brown v. Bd. of Education that the Court reversed itself in a decision which many conservatives at the time considered to be a gross example of an activist liberal Warren Court. Today, Americans of all races look at Brown with a combination of shame and pride, wondering how one group of Americans could treat their fellow citizens so shamefully, but proud of an independent judiciary that is empowered to declare and set aside institutional wrongs. In fact, ever since Brown, the federal courts have taken on the mantle of protector and defender of fundamental constitutional rights for all individuals, often to protect individuals from the abuses of "state legislatures when the latter exercise their police powers" to the detriment of the fundamental rights of the minority. Why should fundamental rights like equal protection or right to privacy, be ultimately left to the whims, passions, and prejudices of state/local politicians whose concerns rarely, if ever, involve protecting the rights of the minority, when those rights may be in conflict with the agenda our beliefs of the majority who voted them into office? The judiciary is aware of human nature/frailty, political reality, and its duty to protect everyone under the law, especially from the tyranny of the majority.

Marriage is not a fundamental right, as asserted above. People are born black, but they are not born gay. Once again, this lawyer argues in circles.

We conservatives denounce the notion of "a living Constitution", and well we should! If used in a general way, it becomes totally subjective. We saw this demonstrated Wednesday in Justice Robert's majority decision in the Burwell decision. On the other hand, Justice Scalia routinely applies a "textual" approach to the interpretation of the Constitution and laws--the clear language of the text as it makes sense under the facts. His application of the "textualist" approach to interpretation is clearly demonstrated in his dissent by his stated logic regarding the government's extension of the federal tax credits under the ACA in the Burwell case. However, due to his strong and compelling sectarian convictions, Scalia abandoned the "textual" approach in the Obergafell case, and resorted to name-calling, casting aspersions, and general disrespecting of his colleagues. This attitude lends nothing to the promote the doctrine of "judicial ", or to the rule of law--not to mention to the notion of being "Christian".

There was no abandonment of Justice Scalia's originalist arguments when he dissented in Obergefell. Did he bother to read the opinion?

What members of the Christian community must remember is that our Founding Fathers created a secular democratic republic. To be sure, religion affects culture, and culture affects the law. To this end, America has always been influenced by its Judeo-Christian roots. For the most part, that has been a good thing. However, when the State seeks to impose sectarian beliefs over the electorate, without demonstrating a compelling state interest or need; or when a law, rule, or regulation denies to everyone the natural and fundamental rights guaranteed by the Constitution, it's no contest.

The Obergafell [sic] Court decision is simply a judicial affirmation that the judiciary realizes that the American people have reached the point where we neither need, nor do we desire to have a State Lord Protector overseeing the personal lives of the nation's citizens. After all, ours is a secular democratic republic. Let's keep it that way!

The laws of nature and nature's God are clearly recognized in the Declaration of Independence AND the United States Constitution.

The Constitution speaks of "the blessings of liberty," which implies a divine origin. Article I, Section 8, Clause 10 recognizes the power of Congress to make laws commensurate with "the law of nations," which means "the laws of nature and nature's God as applied to nations," per James Wilson, who was one of only six individuals to sign the Declaration of Independence and the United States Constitution.

The signatory at the end of the Constitution references "The Year of Our Lord." Yes, there is a recognition of a divine authority in the United States Constitution, and it is wrong for anyone to think otherwise.

The Constitution references freedom of religion in the Bill of Rights, too.

David Frazier                                               

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