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Aspects of Same-Sex Marriage

October 12, 2017 by pgd1

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue before the Supreme Court is whether a Christian baker has the right to refuse to create a wedding cake for two men.

Since the Supreme Court of the United States has recognized same-sex marriage, the nuances of this new constitutional protection need to be worked out.  As a family law attorney in Clearwater, Florida, dealing with all types of divorces, including same-sex marriage divorces, I welcome the Supreme Court’s clarification.

In the case before the Court, the couple says Colorado Civil Rights Laws requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behavior and to express a message he reviles.

If the Court finds for Mr. Phillips, calligraphers, florists, photographers, and tailors who reject gay marriage, may earn a license to discriminate as well.1

In an opinion written in 2015 extending constitutional protections to same-sex marriage, Justice Anthony Kennedy wrote that “Those who adhere to religious doctrines, may continue to advocate with upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the first amendment.

by Patrick Gaffney

by Patrick Gaffney

1 This blog was taken from “Anthony Kennedy’s Camelot”.  The Economist.  September 30th, 2017.


December 17, 2015 by pgd1

Judge Richard A. Posner, a Federal Appellate judge and prolific author, is critical of the dissents in the Supreme Court’s Obergefell decision.1  This is the decision that legalized same-sex marriage throughout the country.

Expounding upon the philosophy of John Stuart Mill and the distinction between “self- regarding acts” and “other-regarding acts”, Posner concludes that there is no compelling reason for banning same-sex marriage.  Posner notes that unless same-sex marriage can be shown to harm people other than the couple in question, there is no reason for state intervention.  He states that the dissenters in Obergefell missed this obvious point.  He goes further by stating that interference in other persons’ lives constitutes bigotry.

Posner is especially critical of Judge John Roberts’ dissent.  He refers to Roberts’ assertion that “marriage is the union of a man and a woman” as nonsense.  He points out that polygamy has long been common in many civilizations.  The author concludes by referring to the chief justice’s dissent as “heartless”.

The chief justice should not feel as if he were singled out as Judge Posner has on a separate occasion been critical of Justice Scalia.2

by Patrick Gaffney

by Patrick Gaffney

1 (June 27, 2015).  Posner, Richard A. The chief justice’s dissent is heartless. Slate.  Retrieved from

2 (August 24, 2012). Posner, Richard A.  The incoherence of Antonin Scalia.  Slate.  Retrieved from


November 19, 2015 by pgd1

Former Arkansas Governor Mike Huckabee thinks that state officials can ignore the Supreme Court’s ruling that states must recognize and provide marriage for same-sex couples.

Speaking prior to the Supreme Court’s decision, the former Governor had this to say:

Constitutionally, the Courts cannot make a law.  They can interpret one . . .  This idea that a judge makes rulings on Friday afternoon and Saturday morning same-sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other branches of government. . .[1]

According to Gabriel Malor, Huckabee speaks “gobbledygook”.  The issue upon which Huckabee gives an opinion was settled in the case of Marbury v. Madison.  It is not the case as Huckabee suggests that all three branches of the federal government must first agree on what the law is for it to be the law of the land.

It would appear that Huckabee is urging a repeat of the confrontation that existed in school desegregation between federal judges and state authorities.  Most interestingly, Huckabee is not alone in his understanding of how the constitution should work.[2]  Paul DeHart points out that Huckabee understands the Constitution like Thomas Jefferson did.  DeHart quotes Jefferson:

. . . But the opinion which gives to the Judges the right to decide what Law are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislative and Executive also in their spheres, would make the Judiciary a despotic branch.

Unfortunately for Jefferson, his cousin, John Marshall, saw things differently and the Marbury v. Madison decision has resolved the question.  Notwithstanding Marbury, various presidents throughout history have disagreed with the Supreme Court as the final decision maker on what the law is.  In other words, these presidents have a similar understanding of the Constitution as Huckabee does.  These presidents include:  Andrew Jackson, Abraham Lincoln, and Franklin D. Roosevelt.

by Patrick Gaffney

by Patrick Gaffney

[1] (January 28, 2015).  Malor, Gabriel. Mike Huckabee Urges A Constitutional Crisis Over Marriage.  The Federalist.  Retrieved from

[2] (February 5, 2015). DeHart, Paul. Huckabee Understands The Constitution Like Those Who Wrote It.  The Federalist.  Retrieved from


September 10, 2015 by pgd1

According to his mother, U.S. District Judge David Bunning might not agree with the U.S. Supreme Court’s decision legalizing same-sex marriage, but he will uphold the law.[1]

Judge Bunning is now at the center of an ongoing same-sex marriage debate.  This debate continues despite a U.S. Supreme Court decision allowing such marriages.  The protagonist in this drama is a Kentucky County Clerk, Kim Davis.

Ms. Davis has appealed Judge Bunning’s ruling holding her in contempt for refusing to issue marriage licenses to same-sex couples.  Ms. Davis objects to same-sex marriage for religious reasons and stopped issuing all marriage licenses in June after the U.S. Supreme Court legalized gay marriage nationwide.  After Davis was sued by both gay and straight couples, Judge Bunning ordered her to issue the licenses and the Supreme Court upheld his ruling.

However, Ms. Davis still refused to issue licenses saying she couldn’t betray her conscience.  Thereafter, Judge Bunning held her in contempt and sent her to jail.  In less than a week, on September 8, 2015, she was released upon the order of the Judge that she not interfere with the issuing of marriage licenses.  During her confinement, the Judge’s home was picketed as the result of his ruling.  According to Reverend Philip “Flip” Benham “Judge Bunning is in contempt of the Court of Almighty God and the constitutions of both Kentucky and the United States.”

Bunning, a devote Catholic and son of a former U.S. Senator and former Hall of Fame pitcher, Jim Bunning[2], is in the spotlight as the first U.S. judge to issue a jail sentence to enforce the Supreme Court’s ruling that made gay marriage legal across the country.

Judge Bunning summed up as follows “Personal opinions, including my own, are not relevant to today.  The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.”

by Patrick Gaffney

by Patrick Gaffney

[1] 9/13/2015.

[2] The elder Bunning actually pitched a perfect game for the Philadelphia Phillies on Father’s Day 1964.


August 13, 2015 by pgd1

In a recent interview with columnist, Bill Kristol, Justice Samuel Alito expressed his concern regarding the recent Supreme Court opinion of Obergefell v. Hodges.[1]  Alito suggested that the concept of “liberty” envisioned in Justice Anthony Kennedy’s majority opinion could lead to many problems.  According to Alito, the same-sex marriage case turned on the definition of the word “liberty” in the 14th Amendment.  Prior to this case, the court had limited liberty to rights “that were deeply rooted in the traditions in the country.”  But Kennedy’s marriage ruling “. . .threw that out.”

“We are at sea I think.  I don’t know what the limits of substantive liberty protection under the 14th Amendment are at this point.”

Russell Berman, writing for Atlantic Magazine, quotes Michael Dorf, a professor of constitutional law at Cornell University as saying that “the conservatives’ use of history is highly selective.”[2]  Alito’s desire to rely on historical interpretation is no more than an ideological choice itself.  Dorf points out in the article that it was Alito and his fellow conservatives on the court who threw out the court’s historical interpretation of the 2nd Amendment in finding an individual right to bear arms.  Dorf asks the following question,

Why do the conservatives, including Alito, say nary a word about the historical understanding of race-conscious government programs when they strike down affirmative action programs?  Could it be because their own ideological preferences make what they would find there uncomfortable?

Phrased by Russell Berman the most interesting question that Justice Alito raises is whether the court has actually expanded the definition of liberty to the degree he suggests it has.

by Patrick Gaffney

by Patrick Gaffney

[1] 2015 The Foundation for Constitutional Government, Inc.

[2] Russell Berman writing for Atlantic Magazine July 21, 2015


July 9, 2015 by pgd1

“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.”

Justice Anthony Kennedy
Obergefel v. Hodges

A few days ago, in a five-four decision, the United States Supreme Court in Obergefel v. Hodges ruled in favor of same-sex marriage.  The decision has promoted much commentary, as have the dissents.  Professor Ruben J. Garcia states that the decision “. . . will be remembered for recognizing the stigma that gays and lesbians encountered because of laws that prevented them from marrying their partners . . .[1]

Adam Liptak, the Supreme Court correspondent for the New York Times, noted that it is hard to identify the precise legal holding in the case.  Not surprisingly, Justice Scalia in dissent was critical of Justice Kennedy’s opinion in pointing out that the decision lacked rigorous legal analysis.[2]  He wrote that it sounded like a fortune cookie, not a legal decision.

Paul Smith, writing in a recent SCOTUSblog article, says the following, “You can like or dislike [Justice Kennedy’s] writing style, but the majority opinion simply applied the law as it stands.”[3]

Smith identifies two basic disagreements between the majority and the dissenters in the Obergefel decision.  First, whether it is right for the court in Lawrence to strike moral disapproval from the list of potential state justifications for discrimination against gay and lesbian people and couples.  And, second, whether the constitutional protections for liberty are entirely static or whether, instead, they evolve as human understanding and social conditions evolve.  Justice Kennedy strongly reaffirmed the second position.  According to Smith, this could be seen as a flat rejection of “originalism”.  This, perhaps, is the real reason why the dissenters were so critical.[4]  “They see the alternative of an evolving Constitution as anathema because it allows recognition of new forms of liberty like the right of a gay couple to live together and be treated equally.”[5]

by Patrick Gaffney

by Patrick Gaffney

[1] Hamilton and Griffin on Rights

[2] Adam Liptak, NPR Radio Show Fresh Air 7/2/2015

[3] Paul Smith, Symposium: A fair and proper application of the Fourteenth Amendment, SCOTUSblog (Jun. 27, 2015, 10:17 AM),

[4] Ibid.

[5] Ibid.

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