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.
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