by Standerinfamilycourt

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State; –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
United States Constitution, Article 3, Section 2, Clause 1

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.    United States Constitution, Article 10

Two landmark cases of the Sexual Revolution in the U.S., namely Roe v. Wade – 1973 (depriving pre-born children of their fundamental right to life), and Obergefell v. Hodges – 2015, legalizing sodomy as “marriage”, were seen by conservatives and original constructionists (with a fair amount of justification, we daresay) as “legislating from the bench”.    An extra-constitutional fundamental right (to “privacy”) was established without actually amending the Constitution via Congressional and state legislative action as called for in Article 5.    Leading up to those cases, several other cases also turned on a judicially-presumed “right of privacy”, including Eisenstadt v. Baird – 1972 (establishing the right of unmarried individuals to purchase contraceptives) and Lawrence v. Texas – 2003 (declaring state laws against sodomy “unconstitutional”).      It should be noted that the fundamental right that is explicit in the Bill of Rights is the right to freedom of association, which came to be closely associated with a presumed “privacy” right which, even worse, has come to override the priority of other conflicting fundamental rights of impacted parties, in order to arrive at some of these activist, individualist decisions that don’t comport with balancing fundamental rights in a way that is best for society as a whole.

As for prioritizing the protection of fundamental rights that inherently conflict with one another, most reasonable people would concur with the principle:  “My fundamental rights end where yours take up.”     For example, a baby’s right to life was ruled in Roe v. Wade to unduly infringe upon a woman’s right to “free association”, but is that reasonable?    A homosexual pair’s right to “free association”, protected by local SOGI laws (Sexual Orientation and Gender Identity) was ruled to have priority over a wedding professional’s free exercise of religion in a matter before the U.S. Supreme Court last year with a landmark ruling in his favor delivered in June.

SCOTUS did (effectively) rule in 2015 that homosexual couples have a fundamental right to remain married, but our unilateral divorce laws continue to deny that same fundamental right to innocent heterosexual spouses who oppose the purported “dissolution” of their marriage as profoundly harmful to their immediate and extended families’ true best interests, and significantly infringing on the family members’ rights to free association and free religious exercise.  In fact, the Petitioner’s presumed right to “free association” with an adulterous partner, and “privacy” are treated as trumping their innocent spouse’s right to free religious exercise and conscience, as well as their right to protection of property with due process of law, along with their right to protection of decades of extended family relationships.    My right to bear arms must necessarily yield to your right to life if I misuse my fundamental right in order to advance my individual selfish interest at your expense.    And so forth.

Most immoral laws and court rulings indeed result from immoral prioritization of conflicting fundamental rights – a balancing that always has been unavoidable when it comes to the Bill of Rights protections.    It is popular (and ridiculously false) to claim that “you can’t legislate morality”,  but is that not precisely what laws against murder, rape, battery, larceny and defamation actually do?   Don’t discrimination laws of all types “legislate morality” ?

C.S. Lewis famously said,

“There is no neutral ground in the universe.   Every square inch, every split second, is claimed by God and counterclaimed by Satan.”

Indeed, if someone isn’t legislating morality, it certainly doesn’t leave just a neutral vacuum.     The evidence is all around us that somebody else is surely going to be legislating immorality –and in constantly increasing amounts,  to the corrosive detriment of the whole of society.    As the morality and sense of the good of the whole thereby disintegrates, the whole nation can go down to historic ruin because immoral laws can be exceedingly difficult to reverse no matter how much vile impact they’ve produced.

This concludes the long introduction to the topic at-hand.
Our U.S. Constitution and state constitutions were designed with an intentional separation-of-powers so that the three branches,  legislative, executive and judicial, historically operated with prudent boundaries; checks-and-balances on each other.    It wasn’t perfect, but it continued to pervasively function well over a long period of time —  until the Sexual Revolution hit in full force in the 1970’s.   In addition, the concept of Federalism served to set boundaries of balance between states’ power and the power of national leaders.     Unfortunately, both of these mechanisms in recent decades have worked together to make the erosion of equal protection in marriage laws enacted with unconstitutional statutory provisions increasingly difficult to counter or overturn, at least with regard to the heterosexuals who (after all) produce the children who become the next generation of citizens.

As we’ve seen since former President Obama swept into office in 2008, it’s been a far different story with regard to homosexuals, who achieved superior protections to all other citizens, and relaxation of those legal boundaries, vis-à-vis heterosexuals .   Homosexuals have typically not been required to undertake the expensive burden of taking marriage cases through all levels of the state courts before a lower Federal court would hear and rule on the case.    Homosexuals have often been extended special privilege in overturning a state marriage law that state judiciary authorities declined to review.    By contrast, heterosexuals in modern times have been forced to bear the expensive burden of exhausting all state channels of review, with SCOTUS being the first allowed Federal  engagement point of review.   The odds of getting a constitutional challenge heard there are approximately 90 to 1 as recently reported.     Reportedly, less than 1% of the 9,000 some cases submitted for SCOTUS docketing ever make it oral arguments.    Unless at least four Justices agree to hear the case, it will never be heard, and no reason need be given.   To make matters worse, the confirmation of Neil Gorsuch to the Court revealed that the Justices had been using a “vetting pool” of clerks, rather than having their own clerks read the cases, reducing the chances of a case which so fundamentally “takes on” the Sexual Revolution having its day in highest court in the land even more remote.    To his credit, Justice Gorsuch announced that he would be joining Justice Alito in breaking with that convenience.    Most recently, Justice Kavanaugh was mum on that issue, so presumably he’s using the “cert” pool, as the now-retired Justice Kennedy did.   That means liberal clerks still probably outnumber conservative clerks in that pool, but “standerinfamilycourt” digresses except to say that even the conservative clerks are going to have an ideological bias against the perception of “legislating from the bench”.

Unfortunately, the whole concept of “legislating from the bench”,  tends to be ideologically charged.   It refers to using courts to violate the constitutional separation of powers in Articles 1 and 3, also the interference with Federalism and states’ rights prohibited by Article 10.    Our constitutional republic is gravely harmed in the clear-cut cases of “legislating from the bench” where special rights have been created for a group of people in a case precedent that will in fact deny fundamental rights to everyone else in order to implement and enforce the same.    Our constitutional republic is equally harmed when an ideological majority uses the concept as an excuse to deny fundamental rights to a group of people whose state constitutions and the Bill of Rights is supposed to guarantee them.   The latter has historically been accomplished either through applying an inappropriate standard of judicial review, or wrongfully declining to hear such a case coming from a lower level.

For example, in 1986, Florida pro-se constitutional challenger Judith Brumbaugh related in her book, “Judge, Please Don’t Strike that Gavel on My Marriage”, that she managed to get her appeal of Florida’s unilateral “no-fault” divorce law docketed at the U.S. Supreme Court.    They ultimately declined to hear the case “for want of a Federal question”.    It was striking that Judith’s request for “cert” even got docketed.   This blog has documented many earlier challenges to unilateral “no-fault” divorce laws based on religious freedom and equal protection grounds, where the state appeals courts applied the rational basis standard of review, instead of the strict scrutiny basis that is constitutionally required when fundamental rights are being denied by a state statute.   The latter requires that the states prove a compelling interest in denying those fundamental rights, and that such laws be narrowly-tailored to meet that interest in the least intrusive way upon those rights.    What tends to happen is that SCOTUS will apply Article 10 first, and say there is no “Federal question” (unless conflicting results are found in lower courts in different circuits on the same issue) even when it is clear that not only is the Bill of Rights being violated, but the state courts are tolerating wholesale violations of Articles 1 and 3, and thereby compromising the separation-of-powers between the branches of government.    What’s really happening is the actual inverse of “legislating from the bench”,  that is, taking away true judicial discretion and validating a phony cause-of-action from the floors of the state legislative bodies, while being allowed to do it through what amounts to judicial collusion and self-dealing.

Although SCOTUS intervened twice in equal protection cases involving marriage or divorce between homosexuals between 2013 and 2015, the last heterosexual divorce case “standerinfamilycourt” could find that was heard appears to be in 1996 out of Mississippi, and it involved the termination of parental rights for a mother who had suffered a divorce to which she probably acquiesced.    (Mississippi’s “no-fault” law is the only one in the country that was comprehensively enacted in 1972 so as to not force divorce on a non-consenting spouse except on a fault basis.)   The matter at issue was not even the divorce itself, but her inability to pay the transcript costs that blocked her from fighting the termination of her parental rights at the request of her now-“remarried” husband.    There was already significant precedent for the costs of access to courts not to be permitted to deny access to her avenues of initial hearing or appeal.  That case was simply remanded back to the state on that very narrow basis.

In the landmark case, Loving v Virginia (1967) there were no such concerns with violating Article 10.    The Lovings had secured the help of the ACLU to fight the state’s anti-miscegenation laws all the way up through the state appellate system in a class action suit, until certiorari was requested and granted from SCOTUS.   However, neither was there any artificial requirement imposed by SCOTUS to wait for differing outcomes in other regions of the country, lest the spurious claim be made of “want of a Federal question”.    The Supremacy Clause (Article VI, Clause 2) ….

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

….makes such assertions highly questionable when Bill of Rights protections are being denied by state legislatures to its citizens.
The sequence of events in the Loving case, as laid out in the majority SCOTUS opinion:

“On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court. The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after modifying the sentence, affirmed the convictions. The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966…”

Fundamental rights to stay married, and to live where they wished were on the line in this case that was decided unanimously by the Justices, two and a half years before unilateral “no-fault” divorce laws began to be enacted in the various states.   While it should never be the case, the ugly reality is that the changeable prevailing morality tends to drive landmark SCOTUS decisions and fundamental rights get some lip service, but tend to take a back seat.  For more on the constitutional challenges to unilateral “no-fault” divorce  that were decided at the state level under an erroneous standard of judicial review, but never heard by SCOTUS, please click here, and here.   Several of the gay marriage cases decided in 2014 cited the right to stay married.

If subsequent state legislation conflicts with a state constitution, there is no violation of Federalism for SCOTUS to enforce the state constitution where a state supreme court denied certiorari.

First-level state appeals are required to be heard, but are sometimes dismissed on technicalities, and hearings for state Supreme Court appeals can be declined without comment, simply based on the number of cases submitted, with “standerinfamilycourt’s” constitutional attorney advising that the state Supreme Court might hear perhaps 5% of the few thousand appeals submitted each session.   Given the influence-peddling on the state level for states that have an elected judiciary, which was ongoing both before and after the jaw-dropping Citizens United ruling by SCOTUS (money is “speech”), it is important, in theory at least, to have an unobstructed path to SCOTUS.    Appellate decisions at the state level, and demonstrably also by SCOTUS, are becoming almost uniformly ideological rather than independent, with the effect that constitutional checks-and-balances between the branches of government are becoming ever-weaker, and stare decisis (ruling by precedent) is pretty much a joke these days.   While in a rare instance there might be a favorable individual challenge where the ruling would be limited in its impact to the law as applied to just that case,  no state appellate court wants to invalidate 50 years worth of unconstitutional marriage dissolutions by admitting the laws are unconstitutional on their face, knowing the social chaos that would result, so these courts will be duplicitous in avoiding ever being put in a situation where they would have to so rule.    Some basis is going to have the be found for taking a constitutional challenge up through the Federal court system despite the long history of being barred from doing so by Article 10 arguments.

Then I will draw near to you for judgment; and I will be a swift witness against the sorcerers and against the adulterers and against those who swear falsely, and against those who oppress the wage earner in his wages, the widow and the orphan, and those who turn aside the alien and do not fear Me,” says the Lord of hosts.   “For I, the Lord, do not change; therefore you, O sons of Jacob, are not consumed.
– Malachi 3: 5-6

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7 Times Around the Jericho Wall  | Let’s Repeal “No-Fault” Divorce!