Welcome to the Brave New World Devised by SCOTUS

mark w. hendricksonBY MARK HENDRICKSON

Exclusive to The Moral Liberal

In a case of painfully ironic timing, between the 800th anniversary of Magna Carta on June 15 and our annual Fourth of July celebration three weeks later, the Supreme Court of the United States (SCOTUS) issued three decisions which fundamentally altered the legal landscape in America in ways that undermine the rule of law, economic liberty, and to the free exercise of the Christian religion. Let’s take a look at a few aspects of the brave new world that the Court has thrust upon us by examining the implications and ramifications of these three cases: King v. Burwell, which upheld the Patient Protection and Affordable Care Act (“Obamacare”); Texas Department of Housing v. Inclusive Communities Project, which conferred constitutional legitimacy on the dubious doctrine of “disparate impact”; and Obergefell v. Hodges, which ruled that gay marriage is a right that the Constitution guarantees to all Americans.

1) King v. Burwell versus the rule of law. While many of us are rightly lamenting the survival of a poorly conceived and economically disruptive, and potentially tyrannical law that lays the groundwork for unelected political hacks ultimately to wield the power of life and death over Americans by granting or withholding health care from them, let’s look at the harm inflicted by SCOTUS’ 6-3 decision upholding the law.

As he did in upholding the PPACA in 2012, Chief Justice John Roberts (this time with the concurrence of Associate Justice Anthony Kennedy as well as the Court’s four rubber-stamp approvers of all things progressive) employed word games to salvage the law. Three years ago, Roberts unilaterally redefined a fine as a tax. This year, Roberts showed that he has fallen all the way down Alice in Wonderland ‘s rabbit hole and adopted the Humpty Dumpty theory of language. To quote Humpty, “When I use a word, it means just what I choose it to mean.” In King, Roberts decided that a “state exchange” meant “not a state exchange.” This is not only absurd and irrational (if “A” means “not A,” reason has been abandoned) but sinister and Orwellian, for as Orwell memorably illustrated in his classic dystopian novel,1984, when the government can redefine reality (e.g., “freedom is slavery”) liberty indeed is lost.

In his opinion, Roberts abrogated the constitutional order by usurping the congressional prerogative to legislate. We can quibble whether he arrogated that right to himself by reversing the plain language of PPACA or bestowed that unwarranted privilege on the IRS by ratifying that politicized agency’s creative interpretation of statutory language. In either case, though, Roberts neutered Congress.

Apart from the violence done to our constitution in this decision, in a very practical sense Roberts has created a moral hazard that is likely to result in Congress being increasingly sloppy and imprecise in writing laws. Congress (as it has been doing in recent decades, much to Justice Scalia’s frustration) will be tempted to pass increasingly vague legislation that will allow unelected officials in the executive branch to decide the meanings thereof.

Tragically, 800 years after the principle that free people have a right to be governed by written, fixed laws instead of the arbitrary opinions of those in power, Roberts’ atavistic thinking has abandoned that principle thereby jeopardizing liberty. Adiós, Magna Carta and rule of law!

2) Texas Department of Housing v. Inclusive Communities Project, versus individual liberty. With this decision, SCOTUS ruled that Americans may be found guilty of violating the Fair Housing Act of 1968, which prohibits racial discrimination, even if there was no intent of discrimination, but simply when the result shows a disparate impact on various races.

There are at least three major problems with the opinion written for the 5–4 majority by associate Justice Anthony Kennedy, who aligned himself with the four progressives:

First, Kennedy endorsed the kind of social engineering that one would expect to find in a communist country like Soviet Russia than in a free society like United States of America. When Kennedy wrote, “the Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society,” he authorized governments in the US to move beyond the realm of negative law (i.e., telling people what they cannot do to others, such as by banning practices designed to segregate races or disadvantage particular races) to positive law, by which governments tell people what to do—for example by guiding and controlling things like where people live in order to meet certain preconceived notions of a “right” amount of racial integration. (As a flippant aside, do you suppose this decision means that the feds will see to it that a couple of Republican white guys are transplanted into those Philadelphia precincts that voted 11,000-to-zero for Obama over Romney?)

Second, by exalting specific politically-chosen outcomes as the criterion for whether actions are lawful or unlawful, Kennedy essentially endorsed the practice of socialism–a system wherein the government ordains certain outcomes, choosing winners and losers, and abrogating the right of individuals to pursue happiness and conduct business as they see fit, so long as they don’t deliberately undermine the rights of others.

Third, Kennedy’s opinion sows the seeds of future confusion. Indeed, Kennedy himself anticipated the problems that his own language will cause. “Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.” “We must be wary of policies that reduce homeowners to nothing more than their race.” “Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.” I agree with all three of those statements. The problem is, if disparate impact is defined as simple numerical discrepancies–and there is nothing in the Supreme Court decision that provides any other guidance or definition of disparate impact–then racial calculations and quotas inevitably will have to be considered by public or private providers of housing and other economic goods. In sum, Kennedy wants to have his cake and eat it, too. He says he doesn’t want us to boil decisions down to a matter of race even as his opinion mandates that we do so. We will be less free as government ensnares individuals and criminalizes actions even when the perpetrator has no objectionable intentions and nobody is hurt (“no harm, no foul”).

One final thought about this case: The Texas Department of Housing was found to be at fault for building too many housing units in predominantly minority neighborhoods. I’m sure they could have been found at fault if they had built too many in white neighborhoods, too. What we have here is a disagreement as to what percentage of publicly funded houses a government agency should build in various locations. The obvious way to keep that disagreement from ever arising again is to return to the free-market and get government out of the business of building housing units with taxpayer funds. Instead, the Supreme Court essentially upheld the principle of central economic planning, but ruled that the Texas housing officials weren’t going about it the right way.  It seems the free markets based on the American principles of individual liberty and private property weren’t even on the Court’s radar screen; instead, the Court wants government planners to engineer the Court’s notions of social justice. SCOTUS has come down firmly on the side of Big Government and against the economic liberty of Americans.

3) Obergefell v. Hodges versus freedom of religion. Once again, this was a 5-4 decision in which Justice Kennedy voted with and wrote the majority opinion endorsed by the four progressives. This decision granted a fundamental right to same-sex couples to enter into unions that are legally identical to marriages. Let us not revisit here the longstanding debates about whether same-sex marriages should be legal throughout the United States, or the proper parental and property rights of homosexuals. There are, however, several aspects of the decision that merit comment.

Let me briefly state that, unlike some conservatives, I have some sympathy with Justice Kennedy’s opinion. The current chaotic and confusing situation—in which Americans who are legally married or have protected parental rights in one state, lose them when they move to another—indeed cried out for consistent nationwide standards as a matter of practicality and fairness. I just don’t believe it was the Supreme Court’s role to establish such standards.

One problem with the Obergefell decision is that the judiciary branch of government usurped the legislative prerogative of Congress, thereby upsetting the balance of power in our constitutional order. Two years ago, in United States v. Windsor, SCOTUS declared unconstitutional the Defense of Marriage Act (DOMA) by which Congress defined (for purposes of federal laws) a marriage as a legal relationship available exclusively to heterosexual couples. Having nullified the people’s legislature from legally defining marriage in U.S. v. Windsor, the Supreme Court, in Obergefell, proceeded to arrogate to itself the power to decree and mandate its own definition of marriage.

Thus, five unelected judges trashed the democratic process and perpetrated an unconstitutional coup by imposing a law that was not passed by a majority of 536 elected officials (435 representatives, 100 senators, and one president).

In one worrisome sense, Obergefell is like the King v. Burwell decision that upheld Obamacare. In both cases, the Court unilaterally assumed the power essentially to rewrite laws that Congress had bungled—Obergefell being a case (in the eyes of a SCOTUS majority) in which Congress earlier (via DOMA) had legislated an incorrect definition of marriage, and King being a case in which SCOTUS adopted the opinion that Congress meant the opposite of what was written in the law, with the result in both cases being that it the Court, not Congress, ended up writing the law of the land.

A second problem with Kennedy’s decision involves its careless use of language. What some referred to as Justice Kennedy’s “soaring opinion” (and indeed, his opinion was quite rich in compassion, sincerity, and emotional conviction) at times lapsed into rhetorical excess that defied reason and fact.

Rhetorical excess #1: Emotion clouded Kennedy’s objectivity when he wrote that homosexuals hope “not to be condemned to live in loneliness.” This is a straw man argument. Nobody I know who favors traditional marriage wants homosexuals to be lonely. Long before Obergefell, adult Americans already were free to love and live with any consenting adult they want. And even if Obergefell had been decided the opposite way and not decreed a right of homosexual marriage, how would that have made homosexuals lonely?

Rhetorical excess #2: Kennedy’s runaway emotions caused him to blunder into a blind spot that renders his lofty sentiments hypocritical. One of Kennedy’s explicit reasons for legalizing homosexual marriages was to grant “dignity” to homosexual couples. I’m all for treating people with dignity. I also agree with Justice Clarence Thomas’ dissenting opinion that dignity is innate, not something that the government has the power to confer or withhold. But if Justice Kennedy believes that it is the Court’s role to grant dignity to American citizens, why did he heap an enormous indignity upon individuals who have broken free from homosexual attractions and practices by denying that such people exist? Kennedy twice asserted that homosexuality is “immutable.” That assertion is blatantly erroneous. It demeans and disrespects the many erstwhile homosexuals who have gone straight; it treats them like Soviet communists treated dissenters—as nonpersons.

Rhetorical excess #3: While I’m sure I love liberty every bit as much, if not more, than Justice Kennedy, he over-reached when he wrote, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Shades of the ‘60s–do your thing, man! Maybe Justice Kennedy was a flower child when he was younger.

The ‘60s rockers had it largely right when the Rascals sang “People got to be free”; The Animals, “It’s my life and I’ll think what I want”; and the Fifth Dimension, “Go where you wanna go, do what you wanna do, with whomever…” But just because a person chooses to define himself in a certain way doesn’t mean that the U.S. government should compel all the rest of us to ratify or agree with everyone’s self-definition. If a man wants to call himself another man’s “wife,” that’s his business, but should the rest of us not be free to describe him as someone’s “civil partner” rather than “wife” or “spouse”? Or does the Constitution’s protection of liberty no longer permit us to hold such views? Must we ignore biological differences between genders and pretend that a homosexual pair is “just like” a heterosexual couple?

The third problem with Kennedy’s arguments in Obergefell is that it poses (at least) two other threats to liberty. One is broad and generic: By divining a “right” to homosexual “marriage” in the Constitution, Justice Kennedy and the four progressives essentially have adopted the ultimate “loose construction” philosophy—i.e., that since the Constitution doesn’t say that homosexuals can’t marry, they can. The other is much more specific and immediate: The Obergefell decision poses a real threat to our First Amendment right to practice religion.

As in his Texas Department of Housing decision, Kennedy’s opinion included statements indicating that he recognized some of the problems that his opinion inevitably will cause and aiming to avert. While granting a “right” to “marriage” to homosexual couples, he took pains to insist that Christians and their values also need to be respected. The problem is: it’s one thing for religious values to be spoken of as worthy of respect; it’s quite another thing for those values to be protected by law.

In defense of Christians, Kennedy wrote, “…it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Also: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

Further, Kennedy cited the Due Process Clause of the Fourteenth Amendment, affirming, “the fundamental liberties protected by this clause include…intimate choices that define personal identity and beliefs.” In that context, he referred to homosexuals’ “identity and beliefs,” without including the necessary corollary that Christians’ intimate choices—and practices—pertaining to their identity and beliefs deserve constitutional protection, too. The problem with Kennedy’s language is that while it expresses what undoubtedly are his good intentions, it does not define where a homosexual couple’s rights end and a Christian’s begin when they are in conflict with each other.

The need for reiterating the basic First Amendment right to the free exercise of religion has been made glaringly obvious by the recent case in Oregon in which Oregon’s labor commissioner upheld a fine of $135,000 ”for emotional, mental, and physical suffering” assessed by an administrative judge against a Christian couple—Aaron and Melissa Klein, proprietors of a bakery—who refused to bake a wedding cake for a lesbian couple’s upcoming special day.

Apart from the constitutional issue, which I’ll address momentarily, the so-called ”justice” in this case is highly dubious. The lesbian couple asserted that they suffered emotional stress from all the media attention they received. Question: Who was responsible for making a media circus out of this little incident? I doubt that the bakers bothered to call a bunch of reporters to tell them that they had turned down a request to bake a wedding cake. I’ll bet you dollars to donuts that it was gay-rights sympathizers (perhaps even contacted by one or both of the lesbians) who generated the publicity. If, as seems likely, it was gay-rights groups and not the bakers who were responsible for the alleged stress, then why must the bakers pay the damages?

Now let’s return to the main issue here—the constitutional ramifications: The commissioner justified the Kleins’ draconian, totally out of proportion fine, by stating that Oregonians have a right “to move about unfettered by bigotry.” Let those words sink in for a minute. In the present context, he unmistakably is saying that it is “bigotry” for Christian Americans to abide by the moral principles of their religion. In essence, he is saying that Christianity is a bigoted religion and Christians (at least, practicing Christians) are bigots.

If anything, it seems that the two Christians in this case have suffered far greater damage and indignities than the lesbian couple. The Kleins’ privately told the lesbians their reasons for refusing their order. On the other hand, the Kleins’ have been subjected to public humiliation (the public declaration of Oregon officials that their religious beliefs make them bigots). The Kleins also have received death threats and had their car vandalized at least twice by those sympathizing with the other side, and yet they are the ones being punished. If the fine assessed against the Kleins stands, then, in a de facto sense, Christianity is not to be practiced in the US, the First Amendment notwithstanding. (I’ll bet you, though, that no progressive judge or administrator would dare fine a Muslim butcher if he refused to process a pig for a customer.)

One other thought about how Christian practice can be reconciled with Obergefell: The left used to believe strongly in “conscientious objector” status for young men who viewed military service as being inconsistent with their deeply held religious convictions. Our law accommodated those conscientious objectors, even though by not going off to war, somebody else’s son was exposed to lethal dangers and, in some cases, died in their place. Can the left not muster enough tolerance now to accept and respect that Christians have a conscientious objection to violating their sincerely held religious beliefs? Apparently not. The supposed “harm” (way too strong a word; “minor inconvenience” is more accurate) “suffered” by those who are asked to go somewhere else to buy a cake cannot compare with the harm suffered by Americans who took up arms as a result of conscientious objectors refusing to do so. The conscientious objections of Christians deserve legal protection, not legal persecution. By failing to outline and mandate those protections in Obergefell, Justice Kennedy and four of his Supreme Court colleagues have weakened the First Amendment. They have given militant homosexuals a club with which to seek to bludgeon anyone, particularly Christians, who may disagree with their view of homosexuality and wish not to violate their conscience.

All in all, in light of the Supreme Court decisions in King, Texas Department of Housing, and Obergefell, it has been a tough season for traditional, long-venerated American principles. Welcome to SCOTUS’ “brave  [but less friendly and free] new world.”


Get your copy of Mark Hendrickson’s excellent: Problems with Piketty: The Flaws and Fallacies in Capital in the Twenty-First Century


The Moral Liberal Contributing Editor, Mark Hendrickson, is Adjunct Professor of Economics at Grove City College, where he has taught since 2004. He is also a Fellow for Economic and Social Policy with The Center for Vision & Values, for which he writes regular commentaries. He is a contributing editor of The St. Croix Review, sits on the Council of Scholars of the Commonwealth Foundation, and writes the “No Panaceas” column in the Op/Ed section of Forbes.com.


Mark’s published books include: America’s March Toward Communism (1987); The Morality of Capitalism (editor, 1992); Famous But Nameless: Inspiration and Lessons from the Bible’s Anonymous Characters (2011); and God and Man on Wall Street: The Conscience of Capitalism (with Craig Columbus, 2012).


Mark Hendrickson’s Archives at The Moral Liberal.


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