GUEST POST: Fisking Bryan Fischer

This is a guest post by attorney Barry Klatzkin about Bryan Fischer’s ignorant bleatings about how the judiciary operates in America. Like most conservatives, he completely misunderstands the constitutional role of judges while pretending to love the Constitution.

The whole problem with the world is that fools and fanatics are always so certain of themselves, and wise people so full of doubts.” Bertrand Russell.

It’s easy to understand Bryan Fischer’s disappointment with the recent ruling allowing gay marriage in Idaho. He invested a great deal of personal effort into the passage of the law that Magistrate Judge Candy Dale struck down. On a personal level, anyone can relate to the frustration he must feel. If Fischer had written an essay about this aspect of his experience, it would have made sense.

Even if he had reiterated his religious objections to gay marriage, one could understand, if not accept, his point of view. Instead of doing either, Bryan Fischer decided to opine on law. Not just the law that was struck down, but on American law as a whole. In so doing, he revealed his complete ignorance of civics.

Of all his misrepresentations, the worst is Fischer’s arbitrary distinction between a judicial ruling and “real” law. At its most basic level, “law” is the set of rules society sets for itself. In America, law is created in numerous ways – the Constitution, legislation, regulation, executive order, and by judges. Judge-made law, or Common Law, is a system that has been at home on this continent since the English colonized it. After the Revolutionary War, the new nation formally adopted Common Law as the basis for its judicial system. While judges have powers outside of Common Law, and Common Law itself has evolved considerably, one can only argue that judicial opinion is NOT law by ignoring all American jurisprudence. All of it.

Even a moment’s consideration shows this to be true: only judges have the authority to order human beings to be executed. By Fischer’s logic, then, every execution is unlawful because it was ordered by a judge. Our courts can dissolve marriages, break up monopolies, issue restraining orders, and settle disputes between private parties. Does Fischer expect us to believe that every ruling ever issued by an American court lacks the power of law? If so, he asks us to reject Article III of the Constitution he claims to admire. Simply put, Fischer’s contention that, “A judge’s ruling is not a law – it is a ruling and a ruling only” shows his pathetic grasp of basic civics.

When he starts from that position of pure delusion, his further thoughts can only be wrong. Courts across the nation have struck down gay marriage bans, but Fischer believes that no such ruling has valid legal underpinning. The outcome of the Idaho case contradicts his religious beliefs, but without having studied law or practiced its application, Fischer is totally unqualified to assess the quality of Judge Dale’s legal work. Like an armchair quarterback, Fischer believes himself to possess a better understanding of law than a woman who was editor of the Idaho Law Review during law school, spent 20 years in private practice, and has held her Magistrate Judgeship for seven years. Yet he accuses her of of hubris.

He is also entirely wrong when he declares that marriage is not a Constitutional right because it is not explicitly enumerated in the text. The Constitution never uses the phrases “fair trial”, either. That does not mean that fair trials are unconstitutional.

Under American law, marriage is considered a fundamental right that is protected by the Due Process and Equal Protection clauses. Loving, Zablocki, and Turner are three cases that have clearly affirmed marriage’s basis in the Constitution. Yet by Fischer’s absurd logic, a state could decide to outlaw marriage and the federal government would be powerless to intervene.

Finally, it is strange to see Fischer declare the recent opinion to be based on sentimentality and emotion rather than reason. It’s not enough for him to say that duly appointed Magistrate has disappointed him. Rather, Idaho has fallen under the iron fist of a “black robed tyrant”. Instead of simply stating his objections dispassionately, he repeatedly cries “tyranny”! Again, this shows that Fischer does not understand the separation of powers that our Constitution establishes as a safeguard against tyranny. Similar hysteria is threaded throughout – “liberty has been pulverized!” “The rule of law has been shredded”. When Fischer looks for emotive language, he should begin with his own insistence on using the phrase “sodomy-based “marriage””. Unless he concedes that his own marriage is based entirely on vaginal penetration, he is clearly reducing a relationship to a sex act in the hope of arousing disgust in his readership. His hypocrisy rivals his ignorance.

It would take many more pages to address each false statement in this embarrassing bit of punditry, but when his writing utterly fails in its descriptions of the fundamentals of the American judicial system and the Constitutionality of marriage, Fischer has proved himself unworthy of further serious consideration. He writes with a degree of confidence that he has done absolutely nothing to earn.

Barry Klatzkin is a recovering JD living in Tel Aviv. Tweet him @BKlatzkin

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  • Alverant

    Is it wrong that I saw the headline as “Fisting Bryan Fischer”?

  • Michael Heath

    Barry Klatzkin writes:

    It’s not enough for him to say that duly appointed Magistrate has disappointed him. Rather, Idaho has fallen under the iron fist of a “black robed tyrant”. Instead of simply stating his objections dispassionately, he repeatedly cries “tyranny”! Again, this shows that Fischer does not understand the separation of powers that our Constitution establishes as a safeguard against tyranny. Similar hysteria is threaded throughout – “liberty has been pulverized!”

    One of the heights of conservative Christian delusion, ignorance, hypocrisy, idiocy, and dishonesty is when they falsely assert tyranny against a judge who is instead limiting government power and protecting the liberty rights of an individual.

  • cptdoom

    @Alverant – please tell us you are purchasing brain bleach for everyone after reading your comment.

  • Pen

    I think perhaps you yourself repeated that Fischer is wrong several times in various ways without going into too quite enough details. I’m not American myself, and I had hoped I would have understood the legal system a little better after reading this article. Anyway, I wanted to focus on the part that did seem to address Fisher’s errors because it left me confused:

    He is also entirely wrong when he declares that marriage is not a Constitutional right because it is not explicitly enumerated in the text. The Constitution never uses the phrases “fair trial”, either. That does not mean that fair trials are unconstitutional.

    You side-slipped from Constitutional rights to unconstitutional. Possibly you meant ‘That does not stop fair trials being a constitutional right.’ Many things are neither constitutional rights nor unconstitutional, but it might nevertheless be unconstitutional to offer them unequally. So is it marriage that has a basis in the constitution or the right, if marriage is to exist at all, of equal access to that institution?

    Our courts can dissolve marriages, break up monopolies, (…). Does Fischer expect us to believe that every ruling ever issued by an American court lacks the power of law

    OK, but the real question at issue here is their power to override and reject the law-making capacity of the legislative branch. I have a little understanding of that right and why it happens but surely they can’t do just whatever they like? I know… they have to show the proposed law is unconstitutional, don’t they? Fischer’s only legal defense is to claim the judge’s arguments with reference to the constitution are false, i.e. she is acting arbitrarily, under cover of her power to claim unconstitutionality? I’d like to assume, in fairness, that is what he is trying to say, in his usual incoherent way. Perhaps it is possible to fear a judge might do so? Is there any protection in the American system against such an eventuality?

    PS. I’m certainly not playing devil’s advocate for Fischer or anti-gay-marriagers here, just trying to obtain a free American civics class.

  • rabbitscribe

    Aleverant:

    Yes.

    Sincerely,

    rabbitscribe

  • rabbitscribe

    OK, but the real question at issue here is their power to override and reject the law-making capacity of the legislative branch.

    Our Constitution is the highest law of our nation. All other laws, including those federal laws created by our Congress, are subordinate to it. The role of our judiciary is to determine if laws are consistent with our Constitution.

    I have a little understanding of that right and why it happens but surely they can’t do just whatever they like?

    Yes, they can, but subject to appeal. A judge could order Ed to stop posting about Bryan Fisher. If Ed continued to do so, he’d be in violation of the law. His recourse is to ask a higher court to overturn the lower court’s injunction. In my judgment, such an injunction would be unconstitutional- and this is important- which is PRECISELY synonymous with, “In my view, Ed’s appeal would be successful.”

    I know… they have to show the proposed law is unconstitutional, don’t they?

    Well, yes, but only to their own satisfaction.

    Fischer’s only legal defense is to claim the judge’s arguments with reference to the constitution are false, i.e. she is acting arbitrarily, under cover of her power to claim unconstitutionality?

    He can say what he likes. If our Supreme Court, the last word in American Constitutionality, agrees with him, then he’s right. If not, not so much.

    I’d like to assume, in fairness, that is what he is trying to say, in his usual incoherent way. Perhaps it is possible to fear a judge might do so? Is there any protection in the American system against such an eventuality?

    Appeal to a higher court, as outlined above.

  • dmcclean

    I got stuck at the same place that Pen @4 got stuck.

    The followup to “[Fischer] is also entirely wrong when he declares that marriage is not a Constitutional right because it is not explicitly enumerated in the text.” needs to mention the 9th amendment and the concept of unenumerated rights. The response the author chose is a non-sequitur.

  • Pen

    @6 – thank you rabbitscribe. So, at least in theory, a judge can behave arbitrarily in overriding the will of the elected legislators? That’s interesting… and the fallback plan is to find another judge who’s willing to override them…

  • Pen

    Yes, they can, but subject to appeal. A judge could order Ed to stop posting about Bryan Fisher.

    Wait a minute…. What price the 1st amendment?

  • rabbitscribe

    So, at least in theory, a judge can behave arbitrarily in overriding the will of the elected legislators?

    In theory and in fact. Say Fisher sues Ed for libel, and the judge orders Ed to stop posting about Fisher. That’s called “prior restraint,” and it’s illegal. I am following two cases where judges have violated the law with respect to prior restraint- and again, this is crucial- which is precisely synonymous with, “I am following two cases in which I expect a judge’s ruling will be overturned.”

    That’s interesting… and the fallback plan is to find another judge who’s willing to override them…

    Not just “another judge,” but a judge presiding over a higher court. In this case, that would be the United States Supreme Court. Within a year or two, I expect SCOTUS to rule on whether or not gay marriage is a constitutional right. Whatever they decide will be the law. Various people will think the law should be different. But anyone who thinks that, despite the Court’s ruling, the law is different, will be objectively wrong.

  • rabbitscribe

    “Wait a minute…. What price the 1st amendment?”

    This is what you have to understand: that’s not your call, it’s a judge’s call. The First Amendment doesn’t allow me to use my free speech to pitch an herbal cure for cancer and falsely claim it works. We know that’s illegal because judges say so. Four halves equal two. And,

    “Ed’s First Amendment rights allow him to criticize Bryan Fisher.”

    equals,

    “No judge will stop Ed from criticizing Bryan Fisher, and if one did, that judge’s decision would be overturned by a higher court.”

  • barry21

    A few things:

    1. Many thanks to Ed for publishing my thoughts here. I’m flattered by his generosity.

    2. While earned a JD, I am not a barred attorney. The prospect arguing with attorneys as a career depresses me.

    3. I acknowledge the incompleteness of my refutations, but my goal was to present a nontechnical set of reasons why Fischer’s ramblings are nonsensical. I don’t pretend that they’re complete, just that they’re a sufficient rebuttal. That said, I cite 3 SCOTUS cases which affirm that the Constitution specifically safeguards marriage.

    3a. @7 – It’s those cases that follow from the premise. The “fair trials” comment is merely to name another right not explicitly enumerated.

  • http://florilegia.wordpress.com Ibis3, Let’s burn some bridges

    Whatever they decide will be the law. Various people will think the law should be different. But anyone who thinks that, despite the Court’s ruling, the law is different, will be objectively wrong.

    And, from what I gather, the SC can overrule its own prior decisions to change the law (cf. Plesy vs. Fergusson and Brown v. Board of Education). I hope for your sake that the Citizens United decision is overturned in the future. That was a terrible, nonsensical one.

  • John Pieret

    I love this from Fischer’s screed:

    [Idaho’s governor, Butch Otter] should fulfill his oath of office, an oath he took before God, to uphold the constitutions of both Idaho and the United States by flatly refusing permission for any city or county clerks in the state of Idaho to issue licenses to same-sex couples.

    Yep, go ahead and stand in the schoolhouse county clerk’s door. Federal marshals love that.

    (Incidentally, the 9th U.S. Circuit Court of Appeals stayed the implementation of the order to hear an emergency motion by the state for a stay pending the appeal.)

  • http://florilegia.wordpress.com Ibis3, Let’s burn some bridges

    *probably my use of “overrule” and “overturn” in my previous are technically incorrect since those would apply to a higher court reversing the decision of a lower, but you get the gist.

  • dmcclean

    @12:

    It’s those cases that follow from the premise. The “fair trials” comment is merely to name another right not explicitly enumerated.

    The thing that throws it off, I think, is that the right to a fair trial *is* explicitly enumerated, just not in those exact words, and so there’s a difference in kind with the marriage example.

  • Ben P

    Yet by Fischer’s absurd logic, a state could decide to outlaw marriage and the federal government would be powerless to intervene.

    this is a very interesting law school hypothetical.

    Suppose a state were to completely do away with the concept of marriage as we recognize it. As far as that state is concerned, marriage is an individual relationship between two people that may or may not have the blessing of a religious figure. All matters formerly affected by marriage are no matters of private contracts between two individuals. The state will play no role in recognizing, authorizing, or condoning marriages of any kind.

    Is this something the Federal Government can control?

    DOmestic relations is historically a province of state law, except where controlled by constitutional rights. But constitutional rights don’t necessarily mean the Feds could establish a marraige law. There’s a reason DOMA only applied to federal recognition.

    The good faith and credit clause would probably obligate the state to recognize marriages occured in other states, at least so long as the specific act in question doesn’t violate public policy.

    But beyond that? who knows.

  • arresi

    @Pen:

    “Fischer’s only legal defense is to claim the judge’s arguments with reference to the constitution are false, i.e. she is acting arbitrarily, under cover of her power to claim unconstitutionality? I’d like to assume, in fairness, that is what he is trying to say, in his usual incoherent way. Perhaps it is possible to fear a judge might do so? Is there any protection in the American system against such an eventuality?”

    Disclaimer: I am not a lawyer.

    Appeal, up to the U.S. Supreme Court. If that doesn’t produce the desired result, than you have a couple of options. First, getting the law changed so as to exclude the unwanted interpretation – for instance, in the wake of the Citizen United decision, many people are calling for a constitutional amendment that would change the legal basis of that decision. Second, bringing another case before the Supreme Court and hoping they will change the rule – that happened with Brown v. Board of Education, which repudiated the earlier Plessy v. Ferguson. Third, judges can be either voted against or impeached, which is probably a valid call for a court that is making flagrantly unconstitutional rulings. (Also, technically, while not strictly a legal option, the ruling could go unenforced. Almost all of the famous cases of that are fairly awful, but if things were bad enough, it might be a temporary relief.) It’s wouldn’t be easy, but it’s possible.

  • barry21

    Ben @17 – that would be very hard to square with Loving, Zablocki, and Turner.

  • rabbitscribe

    Ibis:

    In principle, no. A court is supposed to be guided by stare decisis, or binding precedent. Plessy and Brown isn’t a good example because the Constitution the Court was interpreting had changed in the interim between the rulings. SCOTUS has in practice reversed earlier SCOTUS rulings, but under limited and unusual circumstances. No one is expecting Citizens United to be overruled and people are already talking about an Amendment to change that law:

    movetoamend.org

  • vmanis1

    Plessey and Brown are good cases to cite, but a more.direct example is Bowers (1988, sodomy bans are legal) and Lawrence (2002, sodomy bans are illegal), which explicitly repudiates Bowers as wrongly decided. (In his dissent on Lawrence, Scalia said this would lead to marriage equality, as though this were a Bad Thing.)

    So stare decisis is a tool that the courts use to avoid having to relitigate the same issue over and over, but is not absolutely binding.

    And: IANAL.

  • vmanis1

    Oops, Bowers was 1986, Lawrence 2003.

  • pacal

    Actually Fischer’s concerns about so-called Judicial tyranny etc., are just a smoke screen. The man is a through going theocrat who longs for the USA to be ruled as a Theocracy governed by “Biblical Morality” and the Mosaic Code from the Bible. The fact that the founding documents of the USA like The Declaration of Independence, and Constitution etc., are explicitly secular and based on the values of the Enlightenment and as such reject Theocracy and theocratic rule are sidestepped and ignored. After all this is a man who actually believes that the first Amendment only applies to Christian faiths.

    Of course people like him realize that dressing up their theocratic aims with pro-Constitutional rhetoric is good propaganda but it is just that rhetoric disguising their profoundly anti-Constitutional aims and purposes.

    What Fischer and others like him want and desire is the theocratic rule of the Saints in a very authoritarian if not totalitarian system. It is these Saints / Judges that Fischer actually wants ruling us.

    On a deep but profound level Fischer thoroughly hates and despises America, his so-called hyper-patriotism being a mere disguise for this deep well of hatred for the founding Enlightenment values of America.

  • http://tonythompsonjr%40facebook.com Tony! The Fucking Queer Shoop!

    pacal:

    The man is a through going theocrat who longs for the USA to be ruled as a Theocracy governed by “Biblical Morality” and the Mosaic Code from the Bible.

    This is something I find so utterly bizarre. Is it even possible, in this day, to live by all the rules of the bible? “Biblical Morality” encompasses a lot of regulations on human behavior. Don’t get me wrong, I agree with your assessment of Fisher. I just question how much he’s thought out the implications of following biblical morality. Is he fully prepared to go full on barbaric?

    If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear. http://skepticsannotatedbible.com/dt/21.html#18

    And if his answer is yes, then my contempt for him increases by orders of magnitude.

  • Ben P

    Ben @17 – that would be very hard to square with Loving, Zablocki, and Turner.

    I completely disagree.

    Loving is an equal protections case. It said marriage is a fundamental right, but in the context of saying that the right to be married cannot be denied to a couple simply because they are of different cases.

    Zablocki says that Marriage is a fundamental right, but in the context of a man that was required to get the approval of a court before obtaining a marriage license, which was denied because he was in arrears on his child support.

    Turner is a case which says that Marriage is a constitutional right, and actually upheld regulations saying that one prison inmate would not be allowed to marry an inmate from another institution, but overturned a regulation saying that any inmate seeking to be married while incarcerated must obtain the approval of the prison warden, saying it was not reasonably related to anything.

    A state eliminating its marriage apparatus altogether simply does not implicate any of these cases. As long as the state treats all people on an equal basis and does not burden any particular group, I would say the constitution is 100% satisfied. Nothing about the equal protections clause requires any given state to establish a state apparatus for approving marriages.

  • Ichthyic

    Ben, the issue would go to one of benefits and related issues that come under federal jurisdiction.

    States are inherently involved in making sure federal statutes are acted on. They even get paid to do this.

    if a state abdicated its responsibility towards marriage, it’s likely it would run afoul of the nearly 200 federal statutes regarding marriage that are already on the books.

    those getting married who expect those same benefits gauranteed under federal law, would be discriminated against defacto by living in a state that refused to act to enable those laws.

    There are many other examples aside from marriage law that are analagous.

    like education, for example.

  • whheydt

    As for enumerated vs. unenumerated rights, one can always start from the Ninth Amendment to the Constitution. To wit:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • http://trishwilson.typepad.com/the_count/ The Count

    To 23 and 24. I don’t think Fischer is a kool-aid drinker. He’s actually smarter than that. He’s a con man who says whatever it takes to stoke the fears of his flock (the sheeple he’s going to fleece). Frankly, I honestly think con artists holy men like Fischer are not believers or even atheists. That’s why they have no cognitive dissonance. They can tie themselves up in a knot, not even care, and next day come out with an even bigger WTF pronouncement. If a prediction fizzles, they just come up with a wilder one.

     

    Confidence people cannot help themselves and they’re always looking for the next or the biggest con. So, how about this… What if these various assholes have been looking, since the Moral Majority of the 1980s, to score the United States. Think about it. A long con to steal (make theocratic, where they control the levers of power) the US. I don’t think there’s a con artist alive that could pass on something like that.

     

    I know, I know, my aluminum foil hat is getting heavy. :) No, I don’t believe all that, but it would be funny as hell if it were true.

  • http://trishwilson.typepad.com/the_count/ The Count

    In 28 above, I meant to say “…like Fischer are not believers or may even be atheists.”

  • dingojack

    Tony &etc. (#24) – Bryan’s attitude toward the application of the hypothetical ‘biblical’* laws is rather simple:

    ‘The Law is for thee; not for me’.

    Dingo

    ——–

    * Only some of the ‘biblical’ laws, of course, wouldn’t want to deprive ourselves of that yummy shrimp now would we? @@

  • Ichthyic

    Think about it. A long con to steal (make theocratic, where they control the levers of power) the US.

    Judging by the amount of money that flowed out of US tax coffers and into the pockets of CheneyCo… I think it’s already happened, and you somehow missed it.

    dead serious. the war? a con job for kickbacks for private contractors; they never gave two shits about who lived and who died, it was all about ways of rigging the game for their persona monetary benefit.

    hell, Cheney’s stock portfolio ALONE increased in value by several hundred percentage points in just the first term in office.

    let alone all the kickbacks.

    it was little short of a long con, planned before his dad even took office.

  • cafink

    Since I know Ed’s a stickler for accurate quotations (and rightly so): that Bertrand Russel quote is a common paraphrase of something he actually said, but isn’t quite accurate. At least it doesn’t distort his meaning.

    http://en.wikiquote.org/wiki/Bertrand_Russell#Mortals_and_Others_.281931-35.29