Editorial: Voters don’t need protection from free speech

Democrats never let the inconvenient facts get in the way of their blindly held firm belief that money is the root of all evil and the ultimate bane of democracy.

You know, beliefs like the one that the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission — that found a federal law prohibiting people from spending their own money to make their political opinions and desires known could not pass constitutional muster — was wrong, wrong, wrong.

The 5-4 Citizens United ruling overturned a portion of the McCain-Feingold campaign finance law under which the FEC barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

Democrats have been fighting against the ruling ever since, claiming it lets the rich and powerful and deep-pocketed corporations buy elections. They’ve even floated the idea of amending that portion of the Bill of Rights prohibiting Congress from abridging freedom of speech.

Of course, Nevada’s Democratic delegation to Congress has been in the thick of it. Sens. Catherine Cortez Masto and Jacky Rosen have signed on as sponsors of the proposed amendment, which would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Cortez Masto proclaimed, “A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Rosen chimed in, “Our elections should be decided by the voters — but because of Citizens United, billionaires and corporate interests can spend as much money as they want to elect politicians to do their bidding.”

Pay no attention to the fact President Donald Trump was outspent two-to-one by the aforementioned Hillary Clinton.

Over on the House side Nevada Democratic Reps. Dina Titus, Susie Lee and Steven Horsford have co-sponsored the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers.

All in the name of muting the power of money’s influence over elections.

Pay no attention to the facts just presented by the outcome of the Democratic presidential nominating process.

According to news accounts, former New York mayor and billionaire Mike Bloomberg recently dropped out of that competition after spending somewhere between $500 million and $700 million of his estimated $60 billion net worth. That netted him a grand total of 61 delegates out of the nearly 4,000 delegates awarded thus far.

Then there is the case of Tom Steyer, who is said to be worth a paltry $1.6 billion but spent more than $250 million of his own money on his failing presidential campaign through the end of January. He netted no delegates whatsoever.

Both of the these candidates were allowed the freedom of speech to disseminate their messages and arguments loudly and frequently. But as Justice Anthony Kennedy said in his majority opinion in Citizens United, “The First Amendment confirms the freedom to think for ourselves.”

The poor pliable voters don’t need to be protected from political speech. They can think for themselves — as the facts have again borne out.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Branco cartoon

Newspaper column: The fight for free speech never ends

Ten years ago this month the U.S. Supreme Court reaffirmed the free speech portion of the First Amendment, declaring in the case of Citizens United v. Federal Election Commission that a federal law prohibiting people from spending their own money to make their political opinions known could not pass constitutional muster. The decision has been under constant attack by Democrats ever since.

The 5-4 ruling overturned a portion of the McCain-Feingold campaign finance law under which the FEC barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

The late Justice Antonin Scalia succinctly wrote: “The (First) Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals — and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is ‘speech’ covered by the First Amendment. No one says otherwise.”

But Democrats have wheeled out a proposal to amend the Bill of Rights to exclude certain speech because it is paid for by people with money. It is wrongly called the Democracy for All Amendment.

Every Democratic member of the U.S. Senate — including Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen — has signed on as sponsors. The amendment would allow Congress and the states to “distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

Sen. Cortez Masto put out a press release this past summer saying the amendment is intended to get big money out of politics. “Citizens United opened the floodgates for big money in politics by wrongly allowing corporations and special interests to buy undue influence in American elections,” Nevada’s senior senator wrote. “It’s time the effects of this disastrous ruling were reversed. A constitutional amendment putting the democratic process back in the hands of voters will help ensure that our government represents the will of Americans, not just the wealthy few.”

Pay no attention to the fact spending alone does not necessarily determine the outcome of an election. President Trump was outspent two-to-one by the aforementioned Hillary Clinton.

Sen. Rosen over the weekend sent out an email noting the anniversary of Citizens United and saying, “It’s pretty simple: we’ve got to get big money out of politics. That’s why I’m supporting a constitutional amendment that would overturn Citizens United once and for all. … Our elections should be decided by the voters — but because of Citizens United, billionaires and corporate interests can spend as much money as they want to elect politicians to do their bidding.”

Oddly enough, the amendment concludes by stating, “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.’’

Who do they think own the “press” in the United States? Billionaires and corporations, that’s who.

In fact, Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, singled out the media exemption that was written into McCain-Feingold. Kennedy wrote, “The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. ‘We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.’”

Justice Kennedy concluded, “The First Amendment confirms the freedom to think for ourselves.”

Earlier this past year the House Democrats got into the act by putting forward the 600-page H.R. 1, dubiously dubbed “For the People Act,” which, along with other things, would require increased disclosure of donors and online advertisers. It is co-sponsored by all three of Nevada’s Democratic representatives — Dina Titus, Susie Lee and Steven Horsford.

Citizens United actually left in place certain financial disclosure requirements under McCain-Feingold. In fact, this prompted Justice Clarence Thomas to write a dissent in which he observed that disclosure requirements have spawned a cottage industry that uses donor information to intimidate, retaliate, threaten and boycott individuals and businesses with whom they disagree.

The Founders frequently engaged in anonymous speech and protected it with the First Amendment. The Federalist Papers were penned under pseudonyms.

The fight for free speech never ends.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Editorial: End racial discrimination in all iterations

Let’s face it. Racial discrimination is racial discrimination. Calling it affirmative action is just swinging the pendulum the other way.

The Department of Justice recently joined a group of Asian-American students in their lawsuit against Harvard University that claims the school’s use of a subjective “personal rating” in determining admissions discriminates against Asian-Americans.

Attorney General Jeff Sessions said, “No American should be denied admission to school because of their race.”

Harvard officials put out a statement this past week saying they are “deeply disappointed” in Justice’s action, but concluded it was to be expected “given the highly irregular investigation the DOJ has engaged in thus far.” A Justice official said the investigation is still ongoing and might result in a separate lawsuit or other action.

The personal rating is supposed to be based on character and personalty traits, but the lawsuit claims an analysis of data found Asian-Americans had the highest academic and extracurricular ratings of any racial group, but the lowest score on the personal rating.

The Supreme Court upheld affirmative action policies in 2016 in a case out of the University of Texas at Austin. Justice Anthony Kennedy, who announced his retirement earlier this year, wrote the opinion, which said “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

Judge Brett Kavanaugh, Trump’s nominee to replace Kennedy, once described a government program pushing diversity as a “naked racial-spoils system,” and he predicted in a newspaper column that the Supreme Court eventually would rule that “in the eyes of government, we are just one race.”

Earlier this year Trump’s Justice Department rescinded an Obama-era policy that encourages colleges and universities to promote diversity by considering racial quotas.

In his “Dream” speech Martin Luther King, Jr., did say, “I have a dream that one day this nation will rise up and live out the true meaning of its creed, ‘We hold these truths to be self-evident, that all men are created equal.’ I have a dream that one day on the red hills of Georgia, sons of former slaves and the sons of former slaveowners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

Racial discrimination is abhorrent in all its iterations.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: High court should stand firmly for free speech

Jack Phillips decorates a cake. (Reuters pix via WaPo)

It has long been agreed that the First Amendment right to free speech includes the right to not be compelled to speak, but this past week the U.S. Supreme Court appeared to skirt this simple premise, though it ruled in favor of a Colorado cake baker who refused in 2012 to create a wedding cake for a same-sex couple for a different reason.

The court’s 7-2 ruling in favor of Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., instead hinged on the fact the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion.

Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.

“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”

Kennedy added that the commission’s disparate treatment of Phillips violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

“The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion. … Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs,” Kennedy said.

As usual, Justice Clarence Thomas countenanced no tolerance for such nuanced, too-narrow rulings and tackled the matter head on in a concurrence that was joined by Justice Neil Gorsuch. Thomas said Phillips rightly prevailed on his free exercise claim, but the court failed to address his free speech claim.

Thomas wrote that the appellate court rationalized that Phillips was defying Colorado’s public-accommodations law and not acting as a speaker. “This reasoning flouts bedrock prin¬ciples of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak,” he concluded.

Thomas said public-accommodation laws may regulate conduct, but not expression of ideas, citing a case in which the high court ruled unanimously that the sponsor of a St. Patrick’s Day parade could not be forced to include a group of gay, lesbian, and bisexual Irish-Americans, because that violated the sponsor’s right to free speech.

“While this Court acknowledged that the unit’s exclusion might have been ‘misguided, or even hurtful” … it rejected the notion that governments can mandate ‘thoughts and statements acceptable to some groups or, indeed, all people’ as the ‘antithesis’ of free speech …” Thomas explained.

He further noted that the court has held that communication of ideas can be conveyed by symbolism as well as words — such as nude dancing, burning the American flag, flying a flag upside-down, wearing a military uniform, wear¬ing a black armband, conducting a silent sit-in, refusing to salute the flag and flying a plain red flag.

Thomas said that the court’s previous ruling that the Constitution protects the right to same-sex marriage does not mean those who disagree are not entitled to express that opinion.

“Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” Justice Thomas concluded. “But, in future cases, the freedom of speech could be essential to preventing (the right to same-sex marriage) from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

There are cases waiting in the wings that might afford an opportunity to fully recognize freedom of speech when it comes to whether a business may be compelled to offer its services for same-sex weddings — these include a florist in Washington state, a web designer in Colorado and a calligrapher in Arizona.

Hopefully, the court will be more forthright and specific in favor of free speech in on of those or some other case.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Justices ask questions about California law requiring abortion information

On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.

The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech:

I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences.

And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.

And there have been a lot of cases on — there have been some cases on this in the lower courts. But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? 

How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents?

I mean, wouldn’t we be getting into very dangerous territory if we do this?

The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.

And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?

Justice Neil Gorsuch offered this:

Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? If — if it’s about just ensuring that everyone has full     information about their options, why should the state free-ride on a limited number of clinics to provide that information?”

Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.

Would this billboard have to include a message on where to get an abortion under California law? Yes.

Who will stand up for the First Amendment?

The lede editorial in today’s newspaper rightfully thumps Democrat Rep. Jacky Rosen, who recently announced she will seek Sen. Dean Heller’s seat next year, for embracing the First Amendment-shredding effort to overturn the Citizens United Supreme Court ruling that said corporations and unions have free speech rights.

The editorial noted that this week Rosen was endorsed by the End Citizens United group and she responded by saying, “I’m grateful to End Citizens United for their support, and I will be their partner in the fight against mega-donors flooding our elections with unlimited and unaccountable dark money.”

The Citizens United ruling overturned a portion of the McCain-Feingold campaign finance law under which the Federal Election Commission barred the airing of a movie produced by Citizens United that was critical of Hillary Clinton during the 2008 Democratic primary.

In the press release announcing its endorsement, End Citizens United’s President Tiffany Muller declared, “Nevada will be a top priority for ECU this cycle and we look forward to working closely with Rosen’s campaign and help her fight back against the special interests who will do and say anything to protect their handpicked candidate.”

Rosen was further quoted as saying, “Washington hasn’t been listening to the needs of Nevadans because billionaires and special interests are drowning out the voices of real people in our communities. If we’re going to make real progress on issues like climate change, gun violence and health care, then we need to bring some transparency and accountability to our broken campaign finance system. Unlike Senator Heller, I will stand up for Nevadans by speaking out for real reform and a reversal of this catastrophic Supreme Court decision.”

That press release also said Heller voted three times against the DISCLOSE Act, Democracy Is Strengthened by Casting Light On Spending in Elections. That bill was pushed strongly by Sen. Harry Reid, whois backing Rosen’s run against Heller.

Actually, in the final vote killing that bill, Heller was absent. Though he was campaigning, his spokesman said he would have voted against it.

But in an interview on Sam Shad’s “Nevada Newsmakers” in 2016 Heller called for ending of corporate and union campaign donations in federal elections, though he did not call directly for overturning Citizens United.

“I would be for eliminating both,” Heller was quoted as saying. “Lets just make it fair and let’s get it back to the grass roots, get back to letting rank and file Americans, let them participate in this process. It (money) has completely overwhelmed the process. I think we should restrict both corporations and unions and let’s get it back to the grass roots.”

How you do that without amending the Constitution and ripping apart the First Amendment was not explained.

Rep. Dina Titus, who also has indicted she might run for Heller’s seat in the Senate, also has expressed support for End Citizens united.

Justice Anthony Kennedy explained this in his majority opinion in Citizens United v. FEC: “As a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.’ … Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. (Government could repress speech by ‘attacking all levels of the production and dissemination of ideas,’ for ‘effective public communication requires the speaker to make use of the services of others’).”

Reid in one of his many diatribes on the subject said: “But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Let’s keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents’ faith in the electoral system, and let them know that their voices are being heard.”

This implies the voters are too stupid to hear an open and free-wheeling debate and not be influenced by the volume or frequency of the message.

Who will stand up for the First Amendment?

Jacky Rosen (R-J pix)

 

Editorial: SCOTUS curbs WOTUS, but Congress must act

The U.S. Supreme Court (SCOTUS) this past week acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps includes “land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property and burdensome expenses.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded the judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

Congressman Cresent Hardy also lauded the court ruling, saying, “The Court’s unanimous ruling in the Hawkes case reins in an unchecked executive branch.  Property owners should not have their lands locked up by a ‘final agency action’ and be forced to go through a prohibitively expensive permitting process without the ability to appeal the decision. Thankfully, the Supreme Court agrees.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House and Senate passed resolutions that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

The rules are precisely what the court says they are on any given day due to any given whim

Cato’s Michael Cannon accused the Supreme Court of playing Calvinball in its decision upholding ObamaCare.

In the old Calvin and Hobbes cartoon strip the characters played Calvinball, a game in which the rules were constantly changing to suit a player’s advantage.

You might conclude the court was playing Calvinball in three cases in two days.

In King v. Burwell on Thursday, the court said the words “established by the state” also mean established by a federal agency, when it comes of doling out subsidies.

Also on Thursday in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the court ruled that discrimination can be proven by mere disparate outcomes rather than actual evidence.

In Obergefell v. Hodges, today the court ruled, in its customary 5-4 split, that there is a right to gay marriage in every state, no matter how the citizens of any given state may have voted.

In the ruling today, Justice Antonin Scalia wrote in dissent a sentiment probably held by many libertarians:

Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice John Roberts, back from his sojourn in Humpty Dumpty land in the ObamaCare ruling, opined:

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 …

Justice Clarence Thomas in his dissent took apart the Due Process argument of the majority:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

How many other rights will now be found in the penumbra of the Constitution now that we have a right to health insurance subsidies no matter what the law actually says, a right to claim discrimination based on statistics (lies, damned lies and statistics) and a right to the benefits of marriage no matter what the law or constitution of a state may say.

Justice Anthony Kennedy, who wrote today’s gay marriage ruling, also wrote the opinion striking down the federal Defense of Marriage Act of 1996, signed by Bill Clinton.

In the that earlier ruling, Kennedy wrote:

The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.

That was then, this is now in the game of Calvinball.

Polygamy must be a right, too. It is in the Bible. If Kennedy can cite Cicero and Confucius, why not the Bible?

In fact, Roberts asked that very question: “If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”