The American Bar Association is being warned that a proposed ethics-rule change that would punish attorneys who support traditional marriage violates the U.S. Constitution because the U.S. Supreme Court’s decision establishing “same-sex marriage” also protected religious beliefs.
The Obergefell decision last June recognized for the first time a 14th Amendment protection for the exercise of religion, said Michigan lawyer David A. Kallman of the Great Lakes Justice Center
In an interview with WND, Kallman pointed out that Justice Anthony Kennedy’s opinion in the marriage decision concluded the 14th Amendment protects self-identity.
“He specifically links to our rights as enunciated in the Bill of Rights,” Kallman said. “So if you find your identity in Christ … we would argue, Justice Kennedy has created another layer of protection.”
Kallman said he and others believe that is a “valid interpretation,” and he is urging lawmakers in Michigan to establish processes to implement that protection.
Two experts with the Great Lakes Justice Center, William Wagner and John S. Kane, wrote a letter to the ABA regarding a rule change that would make it ethical “misconduct” for a lawyer to consider “sexual orientation” and “gender identity” in the attorney-client relationship.
“To be sure, the Obergefell decision stated that for some individuals ‘personal identity’ may come from a person’s intimate sexual orientation and the court then ruled accordingly,” they wrote. “The court’s ruling clearly comprehends that an individual’s ‘personal identity’ could come from the person’s intimate religious faith orientation, i.e., his or her ‘beliefs.'”
That means, they explained, that the Supreme Court “determined that this new fundamental constitutional liberty right of personal identity is found in, and protected by, the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution.”
“In effect, in addition to any First Amendment religious protections that exist, a person now has an additional, new, fundamental constitutional right to his or her religious self-identity, and is therefore entitled to have these constitutional rights protected under the 14th Amendment.”
WND this week reported Chief Justice Roy Moore of the Alabama Supreme Court, which recently ruled in opposition to the U.S. Supreme Court’s marriage decision, blasted the American Bar Association for elevating “sexual behavior, appetites, and self-styled identity to the level of unchanging characteristics such as race, sex, ethnicity and national origin.”
“I am under no illusions that the ABA is a conservative or even an apolitical organization, but I would expect it to defend the sanctity of the attorney-client relationship rather than punish attorneys who have sincerely held religious or traditional beliefs and wish to obey God and their conscience,” Moore wrote to members of the ABA Ethics Committee, care of ethics counsel Dennis Rendleman.
Kallman also commented: “The clear interference in the right of an attorney to make a decision to accept or decline a client or operate his or her law practice based upon the religious conscience rights of the attorney will only cause division with the bar. The disregard for the religious conscience and free speech rights of individual attorneys is also clear. The anticipated use of such an amended rule to attempt to discipline attorneys who hold to traditional views on marriage and sexuality, or to deprive attorneys of their license to practice law, is untenable.”
Benjamin R. Thomsen also submitted a comment: “The proposed subsection g amendment to rule 8.4 is far too vague to be safe from simply being used as [discrimination] against groups [with] certain ideologies consider[ed] to be opposed to their own ideologies. I can easily see this as simply being a tool to try and condemn lawyers with traditional religious beliefs.”
That, Wagner and Kane, point out, puts the ABA is the position of violating the Constitution.
Wagner, who holds the rank of distinguished professor emeritus, has provided testimony and evidence to the Swedish Supreme Court, the U.S. Congress and the U.K. Parliament. He has presented at the United Nations and he has served as a magistrate judge, legal counsel in the U.S. Senate and senior assistant U.S. attorney.
Kane also is a distinguished professor emeritus. He was a federal judge’s clerk with the U.S. Court of Appeals.
The proposed ABA rule change, they explained, would “unconstitutionally infringe upon the liberty recognized by the United States Supreme Court in Obergefell.”
In Obergefell, the court held that 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.”
‘Not limited to same sex marriage’
“This ruling was not limited to same-sex marriage,” Wagner and Kane explained. “The court merely applied this broad, newly found constitutional right of self-identity to the factual context of the marriage issue before it. Indeed, the Supreme Court expressly defined this new fundamental liberty right to ‘include most of the rights enumerated in the Bill of Rights,’ and that ‘these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
The court opinion specifically recognized religious rights, the attorneys argued.
The opinion said: “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.”
There, Wagner and Kane argue, “State action must not require or compel a citizen to facilitate, participate in, or provide services which are contrary to 1) a person’s self-identity rights secured by the 14th Amendment, or 2) their freedoms of expression and religious conscience protected by the 1st Amendment.”
It apparently was the first time the argument was raised that the marriage decision recognized an additional layer of protection for people who oppose same-sex marriage because of religious beliefs.
Kallman explained that the argument will need to be presented in a case in court and ruled on by judges in the appellate process, and possibly the Supreme Court.
Judge says Puerto Rico exempted
The Supreme Court’s marriage ruling has faced resistance recently.
The San Juan judge, Juan M. Perez-Gimenez, said the U.S. Supreme “had settled the meaning of two clauses of the Fourteenth Amendment – the Due Process and Equal Protection Clauses – as they applied to same-sex marriages,” reported Lyle Denniston for SCOTUSblog.com.
“But he said the decision only applied to state governments, and Puerto Rico does not have that status.”
Denniston explained the judge found in previous cases that Puerto Rico had been treated as an “unincorporated territory” not under the authority of the 14th Amendment.
The finding put the judge in conflict with the U.S. Court of Appeals for the First Circuit, which struck down same-sex marriage in Puerto Rico.
Perez-Gimenez previously made the same ruling, then the First Circuit acted, but the case ended up before Perez-Gimenez again, and he upheld the ban on different grounds.
The judge began his decision with: “For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarant[ee] of that reverent morality which is the source of all beneficent progress in social and political improvement.”
He ruled: “The court concludes that the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico. Thus, the court declines to hold that the marriage ban codified in Article 68 of the Civil Code violates the Due Process and the Equal Protection Clauses of the Fourteenth Amendment by denying same-sex couples in Puerto Rico the right to marry or to have marriages validly performed in another jurisdiction given full recognition.”
Just days earlier, an endorsement by the American Family Association of an Alabama Supreme Court order strongly affirmed its own rejection of the U.S. Supreme Court’s decision.
“Late last week the Alabama Supreme Court told the U.S. Supreme Court that they, in fact, were the ones who were wrong and that the Alabama Marriage Protection Amendment is valid. The American Family Association of Pennsylvania (AFA of PA) applauds that decision,” the group said.
WND reported the ruling by Alabama’s Supreme Court criticized the U.S. Supreme Court’s creation of same-sex marriage as “lawless” and left undisturbed its 2015 determination that the state’s Sanctity of Marriage Amendment and Marriage Protection Act are constitutional and binding.
Moore wrote in an order that his court “dismisses all pending motions and petitions and issues the certificate of judgment in this case.”
“That action does not disturb the existing March orders in this case or the court’s holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Therefore, and for the reasons stated below, I concur with the order.”
Diane Gramley, president of the AFA of PA, said, “The U.S. Supreme Court had no jurisdiction to redefine marriage in either Alabama or the other states that had passed Marriage Protection Amendments or Defense of Marriage Acts, such as Pennsylvania. They overstepped their constitutional authority.”
The organization pointed out that the U.S. Constitution and the Alabama Constitution provide that the legislature, not the courts, makes law.
She said the marriage decision “by five attorneys on the U.S. Supreme Court last June was illegitimate.”
“They had no constitutional authority to hand down that decision and, additionally, two of those five – [Ruth] Ginsburg and [Elena] Kagan – had officiated at same-sex ‘marriage’ ceremonies and should have recused themselves, but refused to,” Gramley said.
“The AFA of PA is in hopes other states will see the light and recognize the Supreme Court’s unlawful ruling for what it is.”
WND reported Ginsburg has performed same-sex ceremonies and made public statements in advocacy. Justice Elena Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.
The Foundation for Moral Law asked the justices to excuse themselves from the case, but they refused to acknowledge the request. The foundation argued that Canon 3A(6) of the Code of Conduct for United States Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court.” 28 U.S.C. sec 455(a) mandates that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
In his order, Moore called the Obergefell decision completely without constitutional authority, a usurpation of state sovereignty and an effort to impose the will of “five lawyers,” as Chief Justice Roberts dubbed the majority, on the American people.
“Indeed, the Obergefell majority even presumes to override the Federal Rules of Civil Procedure, which limit the applicability of injunctions to parties, their agents, and those acting in concert with them,” he wrote in a scathing opinion attached to the order,” Moore said.
Moore wrote that the U.S. Supreme Court marriage ruling is “like Dred Scott and Roe v. Wade that preceded it, is an immoral, unconstitutional, and tyrannical opinion.”
‘Not a judgment’
Same-sex marriage was mandated in 2015 by the bare 5-4 U.S. Supreme Court majority of Anthony Kennedy, Ginsburg, Stephen Breyer, Sonia Sotomayor and Kagan. John Roberts, Clarence Thomas, Samuel Alito and the late Antonin Scalia opposed it.
Critics of the decision have pointed to a Wisconsin case over slavery as precedent.
In that historic case, the Wisconsin Supreme Court refused to follow the U.S. Supreme Court opinion in Dred Scott, which “said that blacks were not entitled to full protection as citizens.”
The U.S. Supreme Court overturned the Wisconsin court, but the state, in an “act of defiance,” never filed the mandates that required people to return fugitive slaves to their owners.
A justice writing for the Wisconsin said, “I believe most sincerely and solemnly that the last hope of free, representative and responsible government rests upon the state sovereignties and fidelity of state officers to their double allegiance, to the state and federal government; and so believe, I cannot hesitate in performing a clear, an indispensable duty.”
The court also declared the federal law unconstitutional.
The Wisconsin court said, “Here is a distinct recognition of the power and duty of state judges, not to be bound by all the acts of Congress, or by the judgments and decrees of the supreme federal court, or by their interpretation of the constitution and acts of congress, but by ‘this constitution’ ‘and the laws made in pursuance thereof.'”
Simply put, the Wisconsin court said a Supreme Court opinion that wasn’t founded in the Constitution was not a judgment.
Biblical and historic definition
Among the critics of the U.S. Supreme Court’s marriage decision is Rabbi Jonathan Cahn, author of the New York Times bestseller “The Harbinger” and the inspiration behind the “Isaiah 9:10 Judgment” movie, who challenged the Supreme Court’s assumption that it has the authority to redefine marriage.
At a prayer event in Washington, he said: “The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage. That the event should even take place is a sign this is America of [George] Washington’s warning … a nation at war against its own foundation.”
Washington warned the smiles of heaven can never be expected on a nation “that disregards the eternal rules of order and right which heaven itself hath ordained.”
“Justices, can you judge the ways of God? There is another court and there is another judge, where all men and all judges will give account,” he warned.
“If a nation’s high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal,” he said.
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol.
The United States Conference of Catholic Bishops called “same-sex marriage” an “intrinsic evil.”
And officials from several counties in Tennessee have adopted statements opposing the Supreme Court.
WND also reported when dozens of top legal scholars from the likes of Washington & Lee, Boston College, Kansas State, Notre Dame, University of Texas, Villanova, Vanderbilt, Hillsdale, University of Nebraska, Catholic University and Regent University issued a statement encouraging all state and federal officials to treat the Supreme Court’s recent creation of “same-sex marriage” as “anti-constitutional and illegitimate.”
“It cannot … be taken to have settled the law of the United States,” said the statement from the American Principles Project.
“We call on all federal and state officeholders: To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case. To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions. To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons. To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evidence in Obergefell.”
The same fight has erupted, also, in the United Kingdom.
There, what appeared to be developing as a hands-down victory for homosexuals against a baking company that refused to promoted homosexuality all of a sudden was delayed when Northern Ireland’s attorney general asked for permission to argue in the case that the so-called nondiscrimination laws actually violate the protections granted to religion in the European Convention on Human Rights.
A hearing is scheduled for May on that question.