The Fact that We Are In Court is Already a Defeat


About the author: Bryan Fischer is the Director of Issue Analysis for Government and Public Policy at the American Family Association, where he provides expertise on a range of public policy topics. Described by the New York Times as a "talk-radio natural," he hosts the "Focal Point" radio program on AFR Talk, which ... [read 's FULL BIO]

There has, of course, been endless speculation already about which way the Supreme Court will go on Prop 8 and DOMA. We are faced once again with the dreary, dismal prospect that one black-robed tyrant, Anthony Kennedy by name, will decide marriage policy for 315 million Americans.

Our Founders must be rolling over in their muskets and powder, aghast at the servile submission of a once-free people.

What most folks fail to grasp is the fact that we are in court at all is already a defeat for the Constitution and the American principle of self-governance. We have already lost no matter who wins.

When Prop 8 was first challenged in federal court, this is how that initial court appearance should have gone.

Judge: “The people of California have amended their own state constitution to define marriage as the union of one man and one woman. Mr. Attorney, I’m looking in vain for that article of the federal Constitution that explicitly grants me any authority whatsoever to disenfranchise 7 million voters and set aside a state constitution I do not like. I have read the Constitution forward, backward, sideways, and from right to left and I still can’t find it. Can you?”

“Well, your honor, it’s implied in there somewhere. Like in the 14th Amendment.”

“Mr. Attorney, I have read the 14th Amendment repeatedly, and I find no mention of the phrase ‘state constitution’ and in particular I find no mention of the word ‘marriage.’”

“Uh, well, they’re not in there, your honor. But, you know, the Constitution is a living document, so I’m sure it’s grown by now to include all that.”

“Mr. Attorney, I am not interested in some penumbra or emanation, I want chapter and verse. Where does this Constitution explicitly grant the federal judiciary the authority to overturn state Constitutions?”

“Uh, nowhere your honor.”

“That’s exactly what I thought. Get out of my courtroom.”

When DOMA first was brought to federal court, this is how that exchange should have gone:

“Mr. Attorney, I have looked in vain for any mention whatsoever in this Constitution of the word ‘marriage.’ Any mention at all. Any authorization whatsoever that explicitly gives the federal government or any part of it a power of action to tell a state government what its policy may or may not be with regard to marriage.”

“Uh, marriage is not in there, your honor.”

“So, Mr. Attorney, because this Constitution gives me no authority of any kind to meddle in a state’s marriage policy, that issue is reserved for the states according to the 9th and 10th Amendments, correct?”

“Uh, yes, your honor.”

“And DOMA explicitly protects the right of each state under the 10th Amendment to decide marriage policy for itself, does it not?”

“Uh, yes, your honor.”

“That’s what I thought. Get out of my courtroom.”

“But your honor, what about defining marriage for federal purposes?”

“Mr. Attorney, surely you’re not too stupid to understand that if the federal government is going to hire people and grant them spousal benefits, the American people, through their elected representatives, have every right to define marriage for federal purposes, do they not?”

“Uh, yes, I guess so, your honor.”

“That’s what I thought. Get out of my courtroom.”

For Prop 8 and DOMA even to be in court at all, for the American people to abjectly surrender their sovereign, self-governing power to unaccountable bureaucratic tyrants, is a defeat for constitutional government of the highest order. Yet no one seems troubled in the slightest that we are even here.

We have become so accustomed to the dictatorial actions of unelected fascists on the federal bench that we have failed to see that we are no longer citizens but serfs. We now wait meekly and submissively for nine mini-gods swinging gavels like scimitars to tell us what marriage policy must be, long after we and our elected representatives have settled matters in precisely the manner outlined by our governing documents.

This is pitiful, shameful, beneath contempt and beneath the dignity of a free people.

The first words in the Constitution are “We the People,” not we the “Feudal Overlords of the High Court.”

It matters not, in the end, which side prevails. We have already surrendered our freedom as a people by showing up in court at all.

Bryan Fischer

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  • RB

    Fine writing! I don’t understand why the homosexual community takes on the role of the appearance of the opposite partner qualifying they also believe a union to be between a man and a woman.

  • Except we have never really been free …

  • There are those of us who get it and are outraged by it.

  • Centurian2010

    We had slid so far downhill. God save us.

  • Bill1966

    This country was founded by Anglo Saxon’s that believed in a monogamous relationship between a man and a woman. Look back at history people, how many governments have survived that embraced homosexuality? Is Babel still around? How about Sodom? How about the Roman Empire? We now have the Bambam Empire. I am just waiting for him to drop the Shariah Law bomb on us.

  • Anonymous

    That’s true. Unless a state law or amendment is unconstitutional, it stands on the books unless federal law is passed, by either the citizens or legislature, which does not involve the courts until there is a violation of that law. Part of why the Scopes trial was so big. Until the ACLU had a teacher violate that law, and then a case was presented, nothing could be done about it at all by a court because, by definition, it is out of their jurisdiction.

  • In Gods court at the end of time, these people will have to face their God and explain why they totally ignored the Ten Commandments and Gods law as far as marriage goes. When God created people, He created Adam and Eve, not Adam and Steve. To how are they going to get out of this one, by saying hey, we’re just guaranteeing equal rights for everyone no matter what you said in Your Bible. Homesexuality is an abhorrent in Gods eyes and should be in everyones eyes. It is against nature and ignores Gods commandment to be fruitful and multiply.

    • For those who haven’t heard, Washington State just passed two new laws – gay marriage and legalized marijuana.

      The fact that gay marriage and marijuana were legalized on the same day makes perfect Biblical sense because Leviticus 20:13 says “If a man lies with another man they should be stoned ..

      ” We just hadn’t interpreted it correctly before!”

      • liliq

        Did Washington State outlaw annulment or are they just waiting for the other shoe to drop in divorce court?

    • Goob

      The Bible now a days is used more as a weapon than a message of peace
      and tolerance. If God has a beef with homosexuality, then when it
      comes time to meet their maker, it will be between him and them. Who do
      you think God will look down upon more, the person that loved someone
      the same gender as themselves, or the person that hated them for the
      exact same reason? Who are we to judge?

      phrase, “God have mercy” cried out from all these people that are so
      dang intolerant of others frightens me. Do you realize what you just
      said? If you are invoking him to have mercy, then by default, should
      you not do the same? Everyone man, woman, and child that is part of
      this country, should have all of the same rights as everyone else.
      Jesus said to love all the same as he had to them. You may cry, “What
      if they are gay or worship other gods?!”. I sincerely hope that Jesus
      would look at you and say “Did I stutter?”

      Don’t judge
      people, because when it comes down to it, that is Gods job. Now bugger
      off and go do something productive, rather than sitting here arguing.
      Go volunteer, help the elderly, go make bacon. Just do something that
      doesn’t involve you stewing in your own hatred!


    • liliq

      And Adam having a fling with Satan in the garden and they both doing Eve, resulting in twins with two different fathers didn’t sit well with God either, that’s why Adam was a tad embarrassed.

  • Jin28thReg

    Satan will never stop doing all he can to change GODS design for humanity. Sex and greed are his most powerfull tools. There are millions of men and women who are willing to trade their morals – family – children and paradise for a few seconds of feel good.
    Then there are the bullys that dislike themselves so much they feel they must do whatever they can to make others bow to their authority/ideas in order to feel relevant. I believe most of our political pundits fall into this category along with the most aggressive police/prosecuters – district attorneys etc. Sort of like a doctor – the best one are hypochondriacts they have studied harder because they want to know what’s wrong with them.
    The main point however is bring our nation back to GOD. Don’t be afraid to use force if necessary to protect you and your comunity. God instructed His people at at least one point to kill every living person and thing in their the city of their enemy.Find a congregation that teaches the Gospel of GOD and his son Jesus. JESUS WAS NOT AT PACIFIST.

    • Alex M


      He really messed up with that ‘love your fellow man’ and ‘turn the other cheek’ forgiveness nonsense.

      • liliq

        These quotations have been long taken out of context, kinda like saying the Old Testament commands, ‘Thou shalt not kill,’ where every Hebrew should be able to translate it more succinctly such as, ‘Commit no murder.’ We ended up with CO’s from the first misstatement.

        • Alex M

          Loving your fellow man and the concept of forgiveness are the essence of Christianity.

  • A.M. F

    Clear, concise, logical, legal ….excellent argument.

  • MH Snider

    No one gets it. It is all about distraction. The SCOTUS was supposed to hear why Obama is using SS numbers of dead people and does not have one of his own, AKA, Not legally allowed to be President. But 5 court aides forgot to tell the Judges the case was to be heard, yeah okay, and now it’s another uphill battle to get it in front of the court. But the court says that they will hear Prop 8 and everyone forgets about Obama being here illegally let along NOT legally allowed to be President. Wake the hell up PLEASE!!!!

  • What’s the point of voting if someone tries to overturn it because they don’t like the outcome?

  • Dan

    The Constitution entitles every American citizen to Life, Liberty, and the Pursuit of Happiness. Gay marriage harms no one and there is no reason to violate their right to Happiness.

    • vphilly

      “The Constitution entitles every American citizen to Life, Liberty, and the Pursuit of Happiness” Try as I did, I couldn’t find where your quoting of the Constitution said anything about marriage, gay or otherwise. Can you clarify? Using chapter and verse and not clairvoyance, of course.

      • Dan

        It’s right in there with “Pursuit of Happiness”. If you want to go down the road of gay marriage being wrong because it’s not in the constitution, you might as well join the guys who want to take our ARs because they’re not mentioned in the constitution either.

        • Jay

          Actually AR’s are mentioned in a little thing called the 2nd amendment…. You know the one that says we have the right to bear arms. Show me where the constitution says anything about marriage.

          • Dan

            AR is to 2nd amendment as marriage is to pursuit of happiness. I hope you can understand that one.

            You’re right though that the government has no business getting involved with marriage. As such the government has no ground to tell two consenting adults that they can’t get married.

          • liliq

            Should be a penumbra or emanation from the right to life, marriage is a procreation contract.

          • Alex M

            “marriage is a procreation contract”

            Does this mean those unable to have children, or those too old to have children, should be forbidden to marry?

          • Drewski

            AR’s aren’t mentioned at all, goober.

      • liliq

        Let’s try Roe v. Wade’s penumbra. The most basic rights need not be set forth because such rights are fundamental

  • Dan

    Here’s a question for you: I’m agnostic and place the Christian Bible somewhere along ancient Norse and Greek mythologies. Should I have not been allowed to marry my wife?

    • boccagalupe

      All depends, is your wife of the same sex as you ? Are you both homo-sapiens? As a male, you may legally have a wife, as long as you are of opposite gender, and the wife is not an animal (goat, dog, horse, pony etc. etc.).

      • Dan

        So you’re basing *your* opinion of *my* marriage on *your* religious view of marriage. So even though I (along with a LOT of others) don’t believe in the same religion that you do, you want to impose your beliefs on me?

        There are legitimate arguments against bestiality (animals cannot consent), pedophilia (children cannot consent), and incest (screws up the gene pool). What is the legitimate argument against gay marriage that does not invoke religion?

        • liliq

          Homosexuals are incapable of consummating the marriage

          • Dan

            Since when is that even part of the legal definition of marriage?

    • liliq

      If your wife lacks genitalia or you (presuming this is male and female) lack genitalia, then consummation is impossible and annulment of the contract present, same with the underage partners, consanguinity, etc.

      • Dan

        So then you’re saying the only point of marriage is if you can procreate?

  • Once marriage is no longer defined as between one man and one woman it will be back in court on why it limits to one person and one person. Many religious sects allow multiple marital partners. Why are we being “unconstitutional” to them. If anything DOMA violates the 1st Amendment Rights of Mormons more than it does any rights of homosexuals. The ONLY way the Federal Government can be fair is to not recognize marriage at all nor offer any benefit. That would seem more likely since then the government would collect MORE revenue on taxes rather than LOSING tax revenue to pander to 3.5% of our country that want to engage in “loving” sodomy.

    • liliq

      The marriage would first have to survive consummation and annulment.

  • liliq

    Further bringing to any federal court the theory that adverse affects upon homosexuality must supercede and vitiate that basic defense to valid formation of a contract–the defense of impossibility and the remedy of annulment–is a basic assault on centuries of Anglo/Euro contract law and directly threatens international commerce in its critical unsettling of long settled contract law. This is so because in all marriages, the consent of the state is only the beginning of the civil contract, the marriage must be then consummated–under universal and long settled precedent, consummation is a single heterosexual act, and homosexuals fundamentally lack the physical capability of consummating the marriage, resulting in an invalid civil contract and placing the contract at risk of annulment. Divorce should not be available to any marriage that is invalid, because it would be an abuse of judicial resources because annulment is available as a matter of law.

  • Concerned Patriot

    An excellent article by an educated and informed author. Allow me to thank our gracious host Jan Morgan for publishing it.
    This article is NOT about homosexuality or “gay” marriage, it is about whether or not we Americans really have the civil and human rights that our “Constitution” says we do, and the answer is unmistakably, and irrebuttably: NO, we do NOT.
    It doesn’t matter how the Bible, Quraan, or Torah define “marriage” because the separation of church and state clause of the US Constitution renders the issue moot, as in nullified. Many of our founding fathers were refugees from the Roman Catholic inquisition, so I think
    it would be safe to surmise that who they were and what they had escaped from had some influence on their decision to author the separation of church and state clause of the constitution they wrote.
    As for the homosexuality issue: Prop 8 was not about that. It was about same sex marriage as a legal status, not as a religious institution. Sex is not, and never was the issue. Money is. If the IRS and other government agencies didn’t punish people so severely for being single, same sex marriage never would have become an issue.

  • shannon853

    it is no longer about right and wrong, just about who can show they are in power.

  • jenniewalsh

    I don’t think that the gays care about “marriage” at all. I think it is all about government “spousal” hand-outs. The government should butt out of marriage. Marriage is a sacred covenant between a man, a woman and God. Get Big Brother OUT of marriage.

    Get Big Brother out of the hand-out business. It is nothing more than a political and bureaucratic power and grand theft racketeering rip-off scam. The poor benefit very little but the government racketeers profit BIG TIME. Washington DC is a BOOM-TOWN while the rest of the nation is struggling financially.