What Life Experiences Have Led You to Feel the Way You Do?
By Mark Baer, Esq.
"Kennedy's marriage opinion points the way forward....
Obergefell v. Hodges is and will, I hope, come to be recognized as a watershed in the [United State's Supreme] court's fundamental rights jurisprudence....
In a recent piece for the Harvard Law Review, I argued that Obergefell's lasting achievement is to have tightly wound the double helix of due process and equal protection into a doctrine of 'equal dignity' - and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public conversation and education.
The Obergefell opinion is the culmination of a decades-long project by Justice Kennedy to enshrine the notion of dignity into the vary core of our 14th Amendment jurisprudence. 'Dignity' has deep roots in religious tenets like the Christian notion of grace, and since World War II has become central to human rights discourse and international law - a fact of which Kennedy, a noted cosmopolitan, is well aware. For nearly 25 years, Kennedy has been pushing 'dignity' closer to the center of American constitutional law and discourse, bringing our centuries-old Constitution into harmony with ideals now enshrined in the founding charters of many nations in our postwar, postcolonial world.
'Equal dignity' - the idea that all individuals are deserving in equal measure of personal autonomy and freedom to 'define [their] own concept of existence' - has animated many of Justice Kennedy's most memorable decisions about the fundamental rights protected by the Constitution. The importance of this idea to Kennedy's jurisprudence has been most apparent in the gay-rights triptych of Lawrence v. Texas, United States v. Windsor, and now Obergefell. In each successive case, and in the opinion Kennedy wrote in Romer v. Evans invalidating a state constitutional amendment that he rightly described as making each LGBT individual a 'stranger to its laws,' Kennedy has wound the equal protection and due process clauses more tightly, finally fusing them together in Obergefell with the notion of 'equal dignity in the eyes of the law.' ...
Through its focus on encouraging the development of the doctrine of dignity through robust dialogue among individuals, institutions, and even parts of our constitutional structure, Obergefell points a way forward in the still ongoing struggle for equal rights for LGBT individuals - a struggle that will have to be waged not just in the courts but in the regulatory bodies, legislatures and popular lawmaking through initiatives and referenda."
The above excerpt is from an article by Laurence Tribe titled "Kennedy's marriage opinion points the way forward" that was published in the November 17, 2015 edition of the Los Angeles Daily Journal. Laurence Tribe is a University Professor at Harvard, a Professor of Constitutional Law at Harvard Law School, and a pre-eminent authority on the Constitution.
This brings me to a "Letter to the Editor" by Garrett M. Fahy titled "Professor Tribe's view of Obergefell opinion is problematic for several important reasons" that was published in the November 25, 2015 edition of the Los Angeles Daily Journal.
Without getting into Mr. Fahy's various points, his entire perspective is shaped by his belief system, which is evidenced by the following quote from that article: "The Constitution protects citizens from government's encroachment on inalienable rights; it does not exist to force a justice's views of dignity on a diverse population."
The following is a quote from the United Nations' Universal Declaration of Human Rights:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Everyone has the right to life, liberty and security of person."
Mr. Fahy is a civil litigator who graduated from Westmont College and Pepperdine Law School and was admitted to the California Bar on December 4, 2009.
The following is a quote from Westmont College's website: "Christian - At Westmont, Jesus Christ holds preeminence. With our commitment to historic Christianity, we encourage students to integrate their beliefs with their studies and to live out their faith in service to others. Rooting the liberal arts in Christ means that we educate the whole person and encourage students to develop biblically based, intellectually strong convictions and worldviews."
The following is a quote from Pepperdine's website: "Pepperdine is a Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership."
Mr. Fahy's opinion must be based upon his belief that members of the LGBT community are not human because otherwise, the Universal Declaration of Human Rights is very clear and it applies to all humans.
Mr. Fahy is correct that "The Constitution protects citizens from government's encroachment on inalienable rights." The problem is that he either doesn't consider LGBT people to be citizens or he believes that they should somehow be the only group of humans who are not eligible to enjoy equal dignity, rights and freedoms.
It also bears mentioning that there are nine United States Supreme Court Justices. Moreover, Supreme Court decisions that are rendered by a slight majority of Justices are no less "the law of the land" than are those decided unanimously. Since there are nine Supreme Court Justices, at least five must be in agreement in order for their constitutional interpretation to become "the law of the land." I'm afraid that Mr. Fahy is conveniently ignoring that reality when he says, "[The Constitution] does not exist to force a justice's views of dignity on a diverse population."
I have the following questions for Mr. Fahy:
What life experiences led you to feel the way that you do?
What facts would you need to know to cause you to question your point of view?
A "fact" is defined as follows:"Something that truly exists or happens; something that has actual existence; a true piece of information."
An "opinion" is defined as follows: "A belief, judgment, or way of thinking about something; what someone thinks about a particular thing."
A "belief" is defined as "acceptance of truth of something; trust; something that somebody believes in; opinion; Acceptance by the mind that something is true or real, often underpinned by an emotional or spiritual sense of certainty."
In fact, the following is a quote from my article titled "Everyone Should Be Required to See 'Inside Out'":
"On a related note, the following quote from the film holds so true and leads to a great deal of conflict in the world: 'Facts and opinion look so similar. They get mixed up all the time.' It also mentioned 'critical thinking,' which is how people are able to distinguish fact from opinion. Of course, critical thinking also requires self-awareness, which most people tend to lack."
Critical thinking is "the objective analysis and evaluation of an issue in order to form a judgment." While people tend to believe what they want to believe, that is not critical thinking; rather, it is about confirmation bias and other such things. The "objective analysis and evaluation" involves determining the credibility of any given material.
In comparing the credibility of Professor Tribe's analysis with that of Mr. Fahy, I am afraid that there is no comparison. Among his great many credentials, Professor Tribe is a pre-eminent authority on the Constitution. Mr. Fahy, on the other hand, has practiced law for six years, has no expertise with regard to Constitutional Law, and has clearly demonstrated his biases through his choice of schools. In other words, from my assessment, Mr. Fahy's thoughts on the subject have nothing to do with critical thinking and have all to do with confirmation bias.
I should point out that people who are unwilling to entertain the thought that their belief on something may be wrong, regardless of what facts may come to light, are closed-minded because they only care about their beliefs, regardless of the facts.
This all leads me back to an article I published on September 5, 2015 titled "Denying Others Their Human Dignity Based Upon Your Religious Beliefs Is Unconstitutional."