Ted Cruz and bad SCOTUS case law

Over the weekend, Senator Ted Cruz (R-Texas) spoke directly to a U.S. Supreme Court (SCOTUS) precedent he found “clearly wrong.” He chose Obergefell v. Hodges (14-556), in which SCOTUS held that States could no longer define marriage. In choosing that case, Ted Cruz picked the one case among four that Justice Clarence Thomas named as depending on “substantive due process,” that has the weakest support. But he might not have advanced the strongest possible argument against it. To do that, America as a country must come to grips with its abandonment of civilizational values. The reason we still have so many bad precedents is that Americans have tolerated them for too long. So their reversal will require a Great Awakening, like (arguably) four America has had before and after Independence.

Ted Cruz and his reasoning

Sources for Ted Cruz saying what he said include CNN, NBC, Axios, and The New York Post. The motives for their covering this story are as many and varied as the sources themselves. Perhaps the Post sees a sensation, and “sensation sells.” But CNN, NBC, and perhaps Axios all want to hold out Ted Cruz as an example of advocacy of theocracy.

All seem to quote Ted Cruz the same way, and he has had plenty of time to correct any errors. Essentially he said SCOTUS “overreached” with that decision. First, the decision overrode more than two centuries of custom and tradition. Actually it overrides thousands, not mere hundreds, of years of definitions of marriages in all societies. But certainly it overrides nearly three hundred years of American custom and tradition, going back to the First of four Great Awakenings.

Second, Ted Cruz points out that different States were adopting different solutions to a perceived problem. That’s the key: a perceived problem. The only reasons anyone had problems, were entirely subjective. That is, they went on feelings only. Why can’t a roommate inherit another roommate’s property? Why can’t two roommates adopt children, just because they are of the same gender? What difference does it make?

And therein lies the real problem. A John Adams could have told them what difference it made. But since 1875 America has followed the precepts, not of John Adams, but of James G. Blaine.

An atheistic statesmanship

James G. Blaine promoted an explicitly atheistic statesmanship beginning in 1875. His Blaine Amendment would have explicitly forbade the States to spend a penny on any program from which any religious institution could have benefited. When his amendment failed of proposal in the Senate, he went to the States. Thirty-eight States – the number necessary to ratify a Federal Constitutional amendment – passed Blaine Amendments to their Constitutions. (Louisiana repealed theirs in 1974.)

Blaine-ism informed choices for the Supreme Court. That’s why the Court held as it did in Everson v. Board of Education of Ewing (1947). And also in Lemon v. Kurtzman and several cases before and since. That includes Obergefell. Ted Cruz didn’t mention the composition of the Court in those days:

• The Liberal Quartet – Breyer, Ginsburg, Kagan and Sotomayor JJ. (Arguably, Kagan J., having a personal interest in the outcome of Obergefell, should have recused herself from it.)
• The Conservative Contingent: Alito, Scalia, and Thomas JJ.
• Chief Justice Roberts, who voted (this time) for the conservatives (not that it mattered).
• Justice Anthony Kennedy, who “swung” for the liberals this time.

What a difference a President makes

On February 12, 2016, Antonin Scalia took a vacation he shouldn’t have. He went hunting, and stayed at the home of a Democrat. That night he died in his bed. The local medical examiner pronounced him dead over the telephone. Three days before, this email exchange took place between John Podesta and Steve Elmendorf, two long-time Clinton associates:

Didn’t think wet works meant pool parties at [Martha’s] Vineyard.John Podesta to Steve Elmendorf

I am all in

Sounds like it will be a bad nite (sic), we all need to buckle up and double downSteve Elmendorf writing back

Recall in this context these immortal words:

Once is happenstance, twice is coincidence, and the third time it’s enemy action.Ian Fleming

Barack Obama nominated Merrick Garland to the Court. But the Senate refused to act. That fall, Donald J. Trump won election as President. He then proceeded to nominate:

• Neil Gorsuch, to replace Scalia,
• Brett Kavanaugh, to replace Anthony Kennedy, and
• Amy Coney Barrett, to replace Ruth Bader Ginsburg.

That last nomination prompted a Biden campaign official to propose an anti-religious test for SCOTUS membership. And when the Senate Judiciary Committee advanced Brett Kavanaugh’s nomination to the full Senate, Senator Amy Klobuchar (D-Minn.) blubbed to her colleagues the name of Merrick Garland.

What Ted Cruz is missing

The anti-religious test for SCOTUS membership from the Biden campaign illustrates the problem that Ted Cruz either missed, or side-stepped. That problem is that America stands at a crossroads. America has come to the end of the atheistic statesmanship of James G. Blaine and his modern successors.

The Supreme Court overturned many of the precedents the atheistic left holds dear, in the 2021 Term. At last one Senator (Sheldon Whitehouse, D-R.I.) blurted out his fear of just that sort of outcome. He cited that as his reason to vote against Brett Kavanaugh.

But the Court does not yet have on it a strong-enough majority for religious arguments to carry the day. Kavanaugh has held only that it is not for “the unelected Members of this Court” to prescribe moral outcomes. Barrett has said comparatively little. Alito, in Dobbs, held that ending a pregnancy was qualitatively different from, say, same-sex roommates sharing bed. To end a pregnancy is to destroy life.

But where is the ruling that a human being has a right to be born? We won’t get that without someone arguing for it.

Similarly, we won’t get a ruling that marriage exists between one man and one woman, until all America is willing to return to its religious roots. And that means an explicit return.

A civilization does not tolerate evil

That return requires an objective definition, and recognition, of evil. Four and a half years ago, contributor Paul Eidelberg set forth the basic problem with redefining marriage as God never defined it. That problem is: human beings think they can be like God, and arrogate Divine authority to themselves.

Nearly four years ago, Contributor Robert W. Peck of the American Constitutional Party highlighted another problem with the Supreme Court. In Masterpiece Cake Shop v. Colorado Civil Rights Commission (16-111), the same Anthony Kennedy who “found” a “right” under “substantive due process” for same-sex roommates to call their relationship a “marriage,” also found that the State of Colorado may not selectively apply its “civil rights” law. The problem of refusal to come to grips with objective evil, remained.

And it still remains. Rumor had Anthony Kennedy delivering two accommodations to conservatives at the close of the 2017 Term, then retiring. But Brett Kavanaugh has made plain that he does not believe the Court should decide moral questions. He has rightly concluded that the Court has promoted an anti-morality for too long. But if you ask him to uphold a civilizational morality, he might not be willing.

The danger of compromise

Recall that John Adams specifically said the Constitution was “for a moral and religious people.” He understood objective evil. So he would never have countenanced anything other than an explicitly Christian jurisprudence.

America is at this pass because the Great Awakenings did not go far enough. The only evil anyone is willing to recognize is what one individual might do to another. Even then the extreme “libertarian” position might make murder legal. That does seem an extreme case, to be sure. But since most murder victims know their killers, the libertarian puts on them the burden of protecting themselves from their own enemies. No enemies but what you make. But what if someone takes the life of a total stranger? Then that stranger’s friend has the right, even the duty, to avenge him. (Or more likely, her.) The “identity politics” of today would then degenerate into identity-based feuding.

Short of that case is the apparent decision to treat children like little adults. At best this means exposing them to adult temptations, and even celebrating the child who yields thereto. At worst we have the “grooming” of children – and then blaming the anti-groomers when a groomed child, realizing what a horrible mistake he or she might have made, attempts suicide.

Ted Cruz, listen up!

Does Ted Cruz realize this? No one has adequately asked him. But all the Ted Cruzes of this country must come to grips with an objective evil that threatens the well-being of children.

So let’s have that argument that a human being has a right to be born. And let’s have it in court. File the case of Unborn Child X v. [Fill-in-the-blank.] File it against the current Governors and Attorneys General of New York, New Jersey, Connecticut, Michigan, California, and any other State whose governor and/or Attorney General are using taxpayer funds for “voluntary terminations of pregnancy” or the aiding and abetting of same, including without limitation interstate transportation. While we’re at it, file it against private companies who have announced their intentions to so aid or abet. “Discrimination” is not a sufficient ground. The ground must be the termination itself. Sam Alito said this act destroys life, so let’s get a judge to confirm it.

An argument for traditional marriage ought to be much easier. Look again at the slip opinion in Obergefell. Never once did any court, trial or appellate, hear from a child growing up with two adults of the same gender. We’ve seen explicit grooming materials. But so far none has argued, on behalf of a child, that such grooming does the child an actionable wrong.

It’s time someone did so argue.

One final Word

If anyone causes one of these little ones—those who believe in Me—to stumble, it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea.Matthew 18:6