The sound of the US Supreme Court’s  June ruling in Dobbs v. Jackson Women’s Health Organization,  overturning half a century of abortion jurisprudence under Roe v. Wade,  is the sound of multiple cans of worms popping open, particularly in light of associate justice Clarence Thomas’s concurrence, which calls for the court to “correct the error” of “substantive due process” by overturning other previous court decisions based on it.

Potentially on that chopping block: Obergefell v. Hodges, in which the court held that both “substantive due process” and “equal protection” require all states to recognize same-sex marriage.

Rather than eat the worms in question, the US House of Representatives resurrected and passed (with significant Republican support) something called the “Respect for Marriage Act.”

The act, which may or may not survive Senate politics, hangs its hat on a third constitutional justification unmentioned in Obergefell: The “full faith and credit” clause.

“Full Faith and Credit,” Article IV, Section 1 of the US Constitution commands, “shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

The Respect for Marriage Act “prescribes … the Effect thereof” by requiring states to recognize marriages licensed in other states without discrimination on the basis of “the sex, race, ethnicity, or national origin” of the married individuals.

In plain English: If you get legally married in Massachusetts, then go to Mississippi, you’re still legally married in Mississippi even if Mississippi’s government doesn’t like it.

That makes sense, at least within the context of “marriage” as a state-sanctioned privilege requiring a “license.” It’s clearly constitutional, and its likely effect is to protect rights.

But why are state governments regulating and licensing marriage in the first place?

We know why they started doing so in the 19th century: To stop white folk from marrying black folk. That wasn’t a good reason then and wouldn’t be a good reason now even if the court hadn’t ruled it unconstitutional in Loving v. Virginia.

Instead of hoping the federal government will protect our rights from state governments in the issuance of “licenses,” we’d all be better off with government out of marriage entirely.

Yes, entirely. No licensing. No social engineering with tax privileges or penalties. No conditioning of hospital visitation rights on possession of a “license.”

There are two widely held views of marriage.

One is that it’s a religious sacrament, the contents and obligations of which vary from religion to religion.

The other is that it’s a contractual commitment/obligation, and there’s no compelling reason why the content of such a contract shouldn’t vary from marriage to marriage.

In neither case should government, at any level, be in the business of prescribing the content or requiring a license for the practice.

The Respect for Marriage Act may be a good start, but marriage freedom for couples — and non-couple groups — is the finish line.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

In mid-July, the Biden administration extended a January 2020 COVID-19 “public health emergency” declaration  through mid-October of this year. An administration official justifies the renewal of the “emergency” declaration because it “continues to provide us with tools and authorities needed to respond” to  the virus.

But COVID-19 is no longer a “pandemic.” It’s become “endemic,” like the flu or the common cold. The latest variant of “concern,” BA.5, continues to follow the usual path of viral evolution, becoming more contagious but less deadly. While cases are increasing, hospitalizations and deaths remain near low points since this thing began.

And yet around the country, at all levels of government, we see which “tools and authorities” remain in vogue: Mask mandates and “advisories” are sprouting back up.

At this point, however, our masters are fresh out of true “public health” excuses for such mandates.

The state of “the science” on masking as of the beginning of the pandemic was summed up by NIAID director Anthony Fauci: “[T]here’s no reason to be walking around with a mask …. wearing a mask might make people feel a little bit better, and it might even block a droplet. But it’s not providing the perfect protection that people think that it is.”

Despite herculean efforts on the part of “public health” advocates to make science conform with the politically motivated desire to mandate masking over the last two years, the actual science remains the same. There wasn’t good evidence that masking reduces the spread of viral disease as of early 2020. There’s no such evidence now.

So, why the continued fascination with mask mandates?

Hanlon’s Razor — “never attribute to malice that which is adequately explained by stupidity” —  tempt as an explanation, but it’s unsatisfactory. Government “experts” have access to the same peer-reviewed scientific studies the rest of us do. In fact, they largely funded those very studies. They know that the evidence for masking is about as good as the evidence for lucky rabbit’s feet or St. Christopher medals.

The next best explanation is that for any issue, politicians and bureaucrats always feel the need to “do something,” whether that something works or not. Mask mandates are “something.”

But now that the COVID-19 “issue” is fading into  just another endemic condition that kills a few and produces minor, if any, illness in most, a third explanation makes the most sense:

It’s about power. Our rulers seized a lot of it using the pandemic as an excuse, and they don’t want to give it up.

We’re still taking off our shoes in airport lines on command more than 20 years after Richard Reid’s unsuccessful attempt to blow up a plane.

If the political class has its way, we’ll still be donning ceremonial headgear on command 20 years from now.

If the Biden administration won’t shut this “emergency” nonsense down in law, Americans should shut it down in action. It’s time to take back the powers we let government seize, and then some. Resist the “new normal” they’re trying to foist on us.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Democrats, the Cato Institute’s Andy Craig points out at The Daily Beast, are trafficking in panic over an upcoming Supreme Court case, Moore v. Harper.

While the case is nominally about who gets to decide whether newly drawn political district lines pass constitutional muster,  its particulars intersect with controversy over something called the “independent state legislature doctrine,” and therefore with disgraced former president Donald Trump’s scheme to overturn the 2020 presidential election using slates of fake “alternate electors” to replace the real ones.

If the Court gets this wrong, the Democratic Party line goes, state legislative majorities can just throw out presidential election results that don’t go their party’s way, and instead appoint presidential electors who support their preferred candidates.

Craig’s case against the panic is solid: While the US Constitution does say that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” it also provides that “Congress may determine the Time of chusing the Electors.” That time is “election day,” currently set by federal law as the Tuesday after the first Monday in November.

Once that election has been held, the electors have been chosen. No backsies. If a state legislature wants to choose electors in some other way, it has to act BEFORE the election rather than in a fit of pique afterward.

There is, however, a larger issue with the “independent state legislature” doctrine, and that issue is whether state constitutions (and state court rulings under those constitutions) may in any way constrain a legislature’s power to “direct” the “manner” of choosing electors.

Could, for example, the Florida Senate and Representatives just unilaterally decide to choose its presidential electors based on the outcome of a bipartisan game of strip poker, where each hand is worth an elector in addition to a discarded pair of boxer briefs?

The answer is no.

Florida’s state constitution specifies the manner of choosing electors, and Florida’s legislature is bound by that constitution.

Where federal jurisdiction is concerned, another part of the Constitution is worth looking at. Article IV, section 4 specifies that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”

While we could argue over precisely what constitutes a “republican form of government,” a lawless legislature, declaring itself unbound by the votes of the electorate and the constitution which empowers it to govern, clearly doesn’t meet the standard.

Neither would a military junta which used the Texas Army National Guard to seize control of Austin, or a crank who declared himself emperor of New Hampshire from his Manchester apartment.

State legislatures may only “direct” the way electors are chosen within the strictures set by their states’ constitutions, and they can’t retroactively change those procedures after the date set by Congress for an election.

It seems unlikely that the Supreme Court will use Moore v. Harper to void the US Constitution, state constitutions, and its own power to enforce the “republican form of government” clause.

So don’t panic. Yet.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY