Justice Alito Nailed It Monday, and His Explanation Is Damning

Feb 23, 2024 by David Fowler

Justice Alito Nailed It Monday, and His Explanation Is Damning
On Monday, United States Supreme Court Justice Samuel Alito released an opinion in a case in which the state trial “reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian.” Alito’s analysis of this rejection of Christians explains why the parental rights bill as filed by Senator Farrell Haile and Representative Jeremy Faison is such a disaster. But to me, what’s behind the scenes is worse, and it needs to be told.
Why Christians of the “Old Sort” Were Rejected
The reason for the state court’s rejection of the Christian jurors is simple: America, and its legal system, are operating under a new understanding of what it means to be human.
That new understanding of male and female was the foundation of the United States Supreme Court’s purported redefinition of marriage in 2015, Obergefell v. Hodges, though its redefinition was decades in the making.
Think about it: Only a changed understanding of what males and females are could produce a new definition of marriage. This is not rocket science, just logic.
And this new understanding of humanity and family relations was mainstreamed into our nation’s constitutional jurisprudence via the Supreme Court eight years ago without a peep from any Christian legal or policy organizations since, yours truly excepted.  
Justice Alito Proves Me Correct
Alito affirmed what I’ve been loudly, even combatively, trying to warn fellow Christians about for the last eight years—the coming effects of Obergefell. In speaking to the state court’s decision, Alito wrote:
[The] holding exemplifies the danger that I anticipated in Obergefell v. Hodges, 576 U. S. 644 (2015), namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be “labeled as bigots and treated as such” by the government. Id., at 741 (dissenting opinion). (bold emphasis supplied)
Justice Alito Proves Me Correct a Second Time
But notice what he next wrote: “The opinion of the Court in that case made it clear that the decision should not be used in that way, but I am afraid that this admonition is not being heeded by our society.”
Of course, that admonition is not being heeded! It cannot be heeded for the reason I put forward in last week’s commentary:
[W]hen Obergefell repudiated the archetypes around which the law has ordered and organized our individual lives and our social relations for centuries, that did not mean that we now have no law on those subjects of human meaning; it only means our law must adjust itself to this new thing, and the whole of the law must become abnormal in comparison to what it was. . . .
Because the U.S. Constitution’s understanding of human beings and the family is now informed by Obergefell, I can’t support any bill that intimates that the U.S. Constitution through the Fourteenth Amendment is the overarchingly supreme law respecting parental rights in the states.
How The Potential for Federalizing Parental Rights Came About
I would have hoped Sen. Haile and Rep. Faison would have taken into consideration the problem of turning to an Obergefell-normed constitution for parental rights. I have explained this change in the legal landscape to both gentlemen in speaking with them about the marriage bill some legal scholars and I drafted to challenge Obergefell. They know about Obergefell.
But, given they are not lawyers and have not yet embraced my views and those of other legal scholars on Obergefell and the need for the legislature to address it, they sought the counsel of a multi-million-dollar legal organization with over 70 lawyers.
Seeking its advice is understandable under the circumstances, but little did these legislators know that this organization is supporting and lobbying the Federal Parental Rights and Responsibilities Act that would have Congress enact parental rights legislation.
The Legal Organization’s Lawyer Makes Matters Worse
Now that you know of this federal legislation, consider what this organization’s lawyer said about federal involvement on the parent-child relationship when testifying in support of the Haile/Faison bill during Tuesday’s meeting of the Senate Judiciary Committee:
Senator Roberts: So, is it possible that if this bill would pass and ultimately be signed in law is it possible that we could inadvertently and unintentionally turn over parental rights to the federal government?
Lawyer: In my opinion no. I don't believe that's possible [under the 14th Amendment]. . . There was a supreme court case that said you can't do that. That's outside the bounds of the U.S. Congress.
That’s interesting since the bill the legal organization is lobbying in Congress makes the following statements in support of what it wants Congress to do, and let me tell you what to focus on: The quotations are from U.S. Supreme Court decisions interpreting the Fourteenth Amendment in relation to the constitutionality of state laws:
(G) The Supreme Court has explained that the liberty specially protected by the Due Process Clause [of the Fourteenth Amendment] includes the right “to direct the education and upbringing of one’s children.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

(H) “[W]e have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children . . . In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.).

(I) “[T]he Due Process Clause [of the Fourteenth Amendment] does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72–73 (plurality op.).

The Power of Congress Under the Fourteenth Amendment
That may sound nice, but there is Section 5 to the 14th Amendment, and it reads as follows: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Yet, its lawyer told Tennesseans that addressing parental rights is “outside the bounds of the U.S. Congress.”
In my view, this testimony is disingenuous at best. In fact, the U.S. Supreme Court decision the organization’s lawyer alluded to concludes with these statements:
It is for Congress in the first instance to "determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," and its conclusions are entitled to much deference. Katzenbach v. Morgan, 384 U. S., at 651. Congress' discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution.”
City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (emphasis added).
I rest my case that by using the Fourteenth Amendment or agreeing that it applies to the matter of parental rights, Tennessee is voluntarily putting itself in the crosshairs of Congress and a potential U.S. Supreme Court decision. That’s bad enough, but an Obergefell-informed Fourteenth Amendment will be used to decide whether Congress’s restrictions on parents in Tennessee are constitutionally permissible; it’s not a place I want Tennessee parents to be in.
Seems it would be hard for our attorney general to argue that the Fourteenth Amendment does not abrogate the state’s jurisdiction over the parent-child relationship when the Haile/Faison bill acknowledges its application. I want a Tennessee as free from Congress as possible.
What Should We Think Now?
I don’t think Tennessee’s legislators should be bolstering in the heads of folks like Nancy Pelosi, et al, the idea that Congress can use Section 5 of the Obergefell-informed Fourteenth Amendment to trump state laws touching on parental rights if it disagrees with the state’s law.
This bill, as written, needs to die.

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