TMLC Writes Inane Op-Ed on Denial of Cert in Marriage Cases

Richard Thompson and Erin Mersino of the Thomas More Law Center, the Christian right legal group that lost the Dover trial in such spectacular fashion, are quite unhappy with the Supreme Court for denying cert in all of the pending same-sex marriage cases. They tried to make their case in a ridiculous op-ed for Politico.

They do what conservatives nearly always do when the Supreme Court does something they disagree with — attack the very idea of judicial review itself and pretend that when “unelected judges” overturn laws — the laws they like only, of course — this somehow undermines democracy.

There is little more profoundly American than the concept that we are a nation of duly enacted, just laws. Monday’s Supreme Court decision not to hear cases regarding so-called same-sex marriage, however, turns this concept on its head in two ways. First, the decision undermined the fundamental basis of a democracy—that laws reflect the will of the majority. Secondly, today’s ruling robbed parties and states of their day in court.

Both arguments are utter nonsense. The second argument is false; the second is completely ass backwards. The Constitution that Thompson and Mersino claim to adore so much — the one that establishes what is “profoundly American” — was deliberately and explicitly designed to make sure that all laws do not, in fact, reflect the will of the majority. The entire point of the Bill of Rights was to make sure that no majority can violate the rights of the individual. That is what distinguishes the American Constitutional system of government from a pure, majoritarian democracy.

This is wrong as a matter of law and morality, and it represents an affront to democracy. These marriage amendments reflect the definition of marriage that has been in place for thousands of years and sought to prevent the redefinition of marriage to include same-sex unions. In each state, the marriage amendments were passed by the vast majority of the states’ voters, and the laws were struck down by unelected federal judges. The voice of the majority was silenced by appointed judges who hold lifetime appointments.

Gee Dick, why do you think judges were given lifetime appointments? You don’t have to guess, the founding fathers spelled it out in great detail in the Federalist Papers. Lifetime appointments were given specifically to insulate them from the influence of the voters so they could pass judgment on the constitutionality of laws passed by majorities, whether directly by referendum or indirectly through elected legislatures, without caring whether their rulings were popular or not.

Anyone remember when Richard Thompson complained about “unelected judges” silencing the voters when they struck down part of the Affordable Care Act? Or the Bipartisan Campaign Reform Act? Yeah, neither do I. Because he isn’t really against those evil unelected judges overturning democratically-passed laws, he’s only against them doing that when he supports the law. But the arguments he makes are generic arguments against the very system that the Constitution establishes, all while claiming that the system designed by the Founding Fathers is un-American. Irony!

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  • RickR

    They all have the same fallback position on this- civics FAIL.

    It’s rather amusing how all the wingnuts are in lockstep in their response.

  • Reginald Selkirk

    What da fook?

    Justice Kennedy blocks gay marriage ruling

    Supreme Court Justice Anthony Kennedy on Wednesday temporarily blocked an appeals court ruling that declared gay marriage legal in Idaho and Nevada.

  • http://howlandbolton.com richardelguru

    “…definition of marriage that has been in place for thousands of years…”

    There are many different ‘definitions of marriage’ in different countries, so this should apply to the US, a country that hasn’t even existed for thousands of years, let alone any legal definitions it may have. Surely they mean ‘…definition of marriage that has been in place for a few decade: since the legalization of interracial unions…’?

  • John Pieret

    First, the decision undermined the fundamental basis of a democracy—that laws reflect the will of the majority.

    Like when Socrates was forced to drink hemlock?

    Secondly, today’s ruling robbed parties and states of their day in court.

    You had your day in court … the District Courts and the Circuit Courts of Appeals, where you and your compatriots failed miserably to make a cogent argument. You do not have a “right” to be heard in the Supreme Court, especially when your case is so lacking in merit.

    Oh, wait! I’m forgetting your “game changing” legal strategy … getting a bunch of conservative Christians black pastors to say that somehow discrimination against blacks is different than discrimination against gays and supporting the “traditional” definition of marriage, unwittingly demonstrating that these SSM bans are based on religious animus.

    I bet the justices’ law clerks are still laughing about that one.

  • D. C. Sessions

    Mr. Selkirk:

    The Ninth Circuit decision goes a step farther than the others refused cert yesterday [1]. The Ninth applied heightened scrutiny, defining LG (and presumably B) as a suspect class. This has consequences well beyond SSM. One way or another, Justice Kennedy will be wanting to spend some quality time with that issue.

    [1] The Ninth. Need I say more?

  • John Pieret

    What D.C. Sessions said. Idaho is claiming their case is “narrower” than the other SSM cases because they are primarily appealing the application of heightened scrutiny. They claim that creates a split with the Fourth, Seventh and Tenth Circuits (along with others on issues other than SSM). Of course, the Fourth, Seventh and Tenth Circuits found that SSM bans at least failed the lowest test, rational basis, so on this issue, at least, it is a different without distinction. I think they’ll duck it again, waiting to when or if the Supremes take up SSM. The stay is only until Thursday, to give the plaintiffs a chance to respond to Idaho’s petition. If it is stayed significantly beyond that date, it may indicate an interest by the court to take up the issue.

  • John Pieret

    The stay is only until Thursday, to give the plaintiffs a chance to respond to Idaho’s petition.

    Opps, I was wrong about that, the stay is indefinite until lifted by Kennedy or the full court, though it specifically mentioned that the plaintiffs have until Thursday, October 9, 2014, by 5 p.m. to file a response.

  • tbp1

    I’m sure others have noticed this, but I am constantly amused by the fact that an organization ostensibly devoted to fighting for religious freedom named itself after someone who didn’t believe in religious freedom at all, and who burned people alive for disagreeing with his theology.

  • colnago80

    The same Richard Thompson who declared before the judge that ID was not a religious doctrine and then, when the ruling when against him declared that the judge violated his religious freedom.

  • eric

    You had your day in court … the District Courts and the Circuit Courts of Appeals, where you and your compatriots failed miserably to make a cogent argument. You do not have a “right” to be heard in the Supreme Court

    Yeah, I found that part funny too. The judicial system has only given us three ‘days in court,’ not four, so we haven’t had our day in court!

  • colnago80

    Re #2

    JT Eberhard contacted a friend of his who informed him that this is routine.

    It’s absolutely routine when one side in a case says they’re going to appeal it. People read way too much into these stays, which are absolutely normal and expected. It says nothing at all about whether the court will ultimately hear the appeal or how they’ll vote. Utterly meaningless.

    http://goo.gl/U5ewBV

  • scienceavenger

    The same Richard Thompson who declared before the judge that ID was not a religious doctrine and then, when the ruling when [sic] against him declared that the judge violated his religious freedom.

    He should go back to playing guitar, as a lawyer he’s the wall of death.

  • Michael Heath

    Richard Thompson and Erin Mersino defeat their own argument in the first assertion Ed quotes:

    There is little more profoundly American than the concept that we are a nation of duly enacted, just laws.

    [Heath bolded]

    That’s absolutely correct. Prohibitions on gay marriage have been found by courts to be both unjust and a clear violation on the limits of state power per the equal protection and due process clauses of the 14th Amendment.

    This form of state infringement on the individual rights of gays and their families, rather than protecting their rights, have been found to be both unconstitutional while also failing to meet the ‘just governance’ standard asserted in the Declaration of Independence.

  • Nick Gotts

    The entire point of the Bill of Rights was to make sure that no majority can violate the rights of the individual. That is what distinguishes the American Constitutional system of government from a pure, majoritarian democracy.

    If you can name me a single “pure majoritarian democracy” other than those of ancient Greece (and they were oligarchies rather than democracies as the words are used today), I’ll be vey surprised. All modern democracies have constitutions placing limits on the power of majorities (even the UK, in practice).

    Lifetime appointments were given specifically to insulate them from the influence of the voters so they could pass judgment on the constitutionality of laws passed by majorities

    You could achieve the same by appointing Supreme Court judges for a single fixed term, with a generous pension, and a ban on standing for any elected office subsequently. This could mitigate the role of luck in how many appointments a President gets to make.

  • Nick Gotts

    tbp1@8,

    Come now: Saint Thomas More was merely exercising his religious freedom to burn heretics! That’s clearly the freedom most precious to the Thomas More Center. Pope John Paul II, when honouring More by making him patron saint of statesmen and politicians in October 2000, said: “It can be said that he demonstrated in a singular way the value of a moral conscience… even if, in his actions against heretics, he reflected the limits of the culture of his time”. What a good thing we have the Catholic Church to stand fast against the evils of moral relativism, eh?

  • garnetstar

    What a standard of legal “reasoning”.

    Has the TMLC ever won a case? It wouldn’t surprise me if not, since that’s the level they’re on. If they have won, it has to have been a non-important open and shut case. Even Larry Klayman has a better record.

  • Nice Ogress

    …Didn’t Politico used to be sane?

  • whheydt

    Larer news on Kennedy’s stay of the 9th Circuit ruling. He realized he’d made a mistake and redid the order to only stay the ruling for Idaho, leaving the Nevada anti-SSM laws dead and buried.

    The unusual thing here is not that Kennedy stayed the decision, but that the 9th Circuit didn’t, ordering their ruling into immediate effect. Still…it’s hard to see how this stay meets the defined legal requirements for one, even if all you look at is the likelihood of Idaho prevailing in its appeal.

  • pickwick

    No. No, Politico was never sane; as far as I know, it’s always been an all-horse-race, all-the-time, “get the story first, even if you get everything about it wrong and provide no relevant context” kind of site. Clearly not too swift when it comes to op-eds, either.