At the Red State Conservatives conference held in Atlanta right after the GOP Presidential debates former Arkansas Governor, Mike Huckabee, reminded his listeners that the Supreme Court is not the Supreme Being. In a biting dissent in the Obergefell v. Hodges case on marriage, Chief Justice Roberts put the constitutional overreach this way, “who do we think we are?” Both Huckabee and Roberts were aghast at the Supreme Court’s attempt to effectively declare the Natural Law unconstitutional.
The Court tried to etch its decision to redefine the meaning of marriage in stone by saying marriage was a fundamental right rather than just a matter of equal protection for homosexual partners. It used many of the same arguments in Roe v. Wade finding a fundamental right of a woman to abortion. Calling marriage a fundamental right wassaying to doubters, case closed!
Can we speak of God in the Public Square?
In the prime time Presidential debate, God was invited no doubt to the dismay of many secularists. Mercifully, there was not one Nietzsche or Dawkins reference. There were no guffaws about a Flying Spaghetti Monster. No one quoted the first Soviet Cosmonaut Yuri Gagarin, who was reported to have commented, that he did not see God while he was hurtling through outer space.
Despite the continual efforts of sophisticates to marginalize the Almighty, God seemed, at the GOP debates at least, to be a very large elephant (pardon the pun) in America’s living rooms. One blogger went so far as to suggest that including God in the debate constituted a violation of the constitutional prohibition against the use of religious tests as a prerequisite for holding public office.
At least four questions in the debate included references to God. Such things as social welfare for the marginalized, war and peace, and racial equality were addressed from a religious perspective. The final question of the debate, written by a Facebook viewer, asked how God had spoken to each of the candidates about what should be the next President’s priorities.
Questions on abortion and marriage law surfaced as well.
Many non-attorneys, including Governor Kasich it seems, imagine that once the Supreme Court issues a decision, debate is over. In my over forty years of experience teaching Constitutional Law as a full time professor of political science at several State and Catholic college and universities, I have always noted that if the court did, in fact, have the final say, then the constitutional republic created at Philadelphia would be neither constitutional nor a true representative democracy.
Not everyone would agree with the Chief Justice Charles Evans Hughes’ (chief 1930-41) assertion about the meaning of the language of the Constitution which virtually every law school student is taught to believe from the first day in class. Hughes declared, that the nation lives under the Constitution, but the courts tell us what that Constitution means. Where does that leave the voters and the two other “co-equal branches?”
Megyn Kelly, one of the debate moderators, pointedly grilled Ohio Governor John Kasich asking how he would explain his opposition to same sex marriage (Obergefell was an Ohio case) to one of his daughters if she came up to him and said she was gay. As Kasich began to speak, she interrupted and he asked her to hear him out. No doubt she was surprised to hear the Midwestern governor’s newly espoused position that the Supreme Court had settled the question in Obergefell and the he and the nation needed to move on. Court decisions should never be considered etched on tablets of stone nor should they be beyond democratic scrutiny. History is replete with examples of cases where past precedents were revisited and revised.
In fairness to Governor Kasich, he sought to support “unconditional” love for all people as Jesus demonstrated in His life. Christ’s love for all of us is clearly unconditional. We, on the other hand have the free will to accept that love or reject it. Unconditional love of neighbor need not affirm or condone every one of their actions or beliefs.
Case Closed or do elections have consequences?
Court decisions on any subject do not automatically end the debate. Would Governor Kasich say separate train cars, water fountains and segregated classrooms based on race should be the “law” because of Plessey v. Ferguson case in 1898? What about the Dred Scott decision in 1857? Is slavery was considered permissible? In light of the recent videos showing Planned Parenthood officials discussing abortion procedures designed to sell the tiny human body parts, would it not be fair for people of good will to wonder whether the blanket constitutional right to abortion espoused by 6 justices in Roe v. Wade (1973) might have to be revisited yet again? It is noteworthy that the decision in Obergefell, by contrast, was a razor thin 5-4. History is replete with examples of cases where past precedents were revisited and revised. Roe has been revisited well over 40 times in its 42 year history.
In a Justia blog post, Professor Michael Dorf of Columbia Law school asked “Will the Supreme Court’s Same-Sex Marriage Ruling Face Massive Resistance?" The broader question he was really asking was whether or not the people will eventually go along. No matter what position one takes on the recent decision in Obergefell, the author seems to be saying that efforts to find exceptions to a major Supreme Court decisions by holding actions in the states will ultimately fail.
If he is right, and I respectfully disagree, the “rule of law” in the American system will ultimately mean only what the Supreme Court says it means. As far as God and the “Natural Law” is concerned, the narrowest possible majority of nine justices and cultural elites who educate future generations, from grade school through law school, will determine if God is dead, just irrelevant, or worse a mortal enemy off the secular state.
Pope Francis as recently as August 7, 2015 told the American faithful that they must stand up to defend marriage, family and religious liberty. As Supreme Court decisions can be called “Landmark” so can elections be called ‘Watersheds.” As the old saying goes, elections have consequences. If the GOP presidential debates are any measure of things to come, the Presidential Election of 2016 may be viewed as even more historic one than the election of 2008 which swept the first African American President into the White House.
Frank Kessler is Professor of Political Science at Benedictine College. He retired as Distinguished Professor at Missouri Western State U. and has taught Presidential Politics to MA. & Ph.D. candidates at UMKC.