Alan J. Singer: Comments about the Supreme Court Justices Comments

May 12, 2015 by

An Interview with Alan J. Singer: Comments about the Supreme Court Justices Comments

Michael F. Shaughnessy

1) Professor Singer, you seem to be following the Supreme Court and their analysis of same sex marriage. What can you tell us briefly about what seems to be going on?

I want to start with an admission. Although Article 3 Section 1 of the United States Constitution lists no qualifications for judges other than “good behavior” while in office, I do not believe I am qualified to be a Justice of the United States Supreme Court. It is not because I am trained as a teacher and an historian and instead of as a lawyer. It is primarily because I am an activist with a political commitment to my fundamental beliefs and not to the basic integrity of the legal system. Supreme Court Justices must defend the principles of the Constitution even when they run counter to their own views.

It is because Justices swear an oath to defend the United States Constitution as the first law of the land, and for the other reasons that I disqualify myself, that I believe Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito, and Clarence Thomas should never have been appointed to the Supreme Court. In decision after decision they placed ideology and personal values above the Constitution and the law. They decided corporations have the same rights as people and then defended the rights of the world’s wealthiest companies over the rights of ordinary people, are still considering undermining a national health insurance plan, and denounce crime and violence while ensuring the maximum distribution of deadly weapons. However they eventually decide on the same-sex marriage issue, I do not trust them.

The current case, Obergefell v. Hodges, originated in Ohio but also involves attempts by the states of Kentucky, Michigan, and Tennessee to bar same-sex marriages in their states and to refuse to accept the legal validity of same-sex marriages recognized in other states. It started when a Cincinnati, Ohio couple sued charging that alleging that Ohio discriminated against same-sex couples who lawfully married in another state. It came to the Supreme Court after the Ohio ban on same-sex marriages was upheld in a divided opinion by a Court of Appeals.

My Huffington Post article, “On Same-Sex marriage, Supreme Court Needs to Go Back to High School,” focused on comments and questions Supreme Court Justices asked attorneys for the plaintiffs. Reading them, it seems clear to me that the so-called “Conservative wing” of the court, the Roberts-Scalia-Alito-Thomas gang of four was operating more on anti-gay bias than on constitutional principles.

2) Now, I used to study the Constitution – and I even remember the book and the high school teacher – grumpy old Mrs. Ryan, who is probably turning over in her grave right about now. But do the justices of the Supreme Court seem to be concerned about the Constitution – at least in your mind?

I think every high school in the United States has a grumpy old Mrs. Ryan, but in the Bronx my Mrs. Ryan used a different name.

The text of the United States Constitution never mentions marriage, straight marriage, gay marriage, or any other kind of marriage. It is not defined, banned, or encouraged for that matter.

The Bill of Rights, the first ten amendments to the United States Constitution that were approved in 1791 do provide some clarity on the issue of marriage regulation.

According to the ninth amendment, the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That seems to mean that even though marriage is not discussed in the original Constitution, people still have a right to get married if they want to.

The tenth amendment states “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This provision seems to assign definition and regulation of marriage to the states until everything changed in 1868.

The first amendment of the Constitution prohibits Congress from making any laws “respecting an establishment of religion” which seems to mean that Congress cannot impose religious beliefs on the American people. While this did not prohibit states from codifying religious beliefs in the law, that also changed when the fourteenth amendment was approved in 1868.

The fourteenth amendment was passed after the Civil War to prevent former slave states from denying legal rights to newly freed Blacks. However it does not just refer to the rights of African Americans.

The way I read this amendment and taught about it as a high school social studies teacher, states are obligated to abide by the provisions of the United States Constitution and there must be one set of laws for everybody. A state cannot have a law granting legal rights to one group of people and not another. The country may not have been thinking about gays and lesbians in 1868 or about same-sex marriage, but that is what the Constitution says. If opponents of same-sex marriage want to ban them, it looks like they would have to change the United States Constitution.

3) It seems to me that marriage is a social issue – not a legal issue – what do the Justices seem to think?

It is both a social and a legal issue and that is the problem for the so-called Conservative wing of the court. They are obligated to decide cases on legal, not social or moral grounds. As Justice Scalia, who calls himself a “textualist,” has made clear many times, the issue is not how he feels about something, but what the text of the United States Constitution says. Now he and the rest of the gang of four may be trapped by their own theory of constitutional interpretation, but I expect them to worm out in the end and find some way to vote bias ahead of law.

4) We have all heard about “life liberty and the pursuit of happiness” – Well if marrying a person of the same sex makes you happy, what’s wrong with that?

I have colleagues, friends and family members, including my son, who are gay and partnered in loving and supportive same-sex marriages. I don’t think the issue is so much that it makes them happy. We do not have a legal right to happiness. It is more that the law allows them to be fully and openly human after centuries of discrimination and victimization. I think people who disagree with same-sex marriages for whatever reason have a right to their beliefs but should not be able to impose them on others. If you do not believe in same-sex marriage, don’t have one.

5) Does the Constitution mention marriage, gay marriage, lesbian marriage or any other type of marriage?

The text of the United States Constitution never mentions marriage, straight marriage, gay marriage, or any other kind of marriage. It is not defined, banned, or encouraged for that matter.

6) What happened in 1868?

1868 was a game-changer in the United States. The original freedoms described in the Bill of Rights only regulated the behavior of the federal or national government. States could follow the same course or ignore it. Congress could not establish a national religion or limit freedom of speech, the press, assembly, or the right to petition. It also had to respect due process of law. To protect the rights of previously enslaved African Americans after the Civil War, the fourteen amendment extended citizenship rights within states and these protection to all citizens of the United States and prohibited the former Confederacy from interfering with them. The amendment was intended to protect the rights of the new freedmen, but it is written in a broad way that protects the rights of all citizens.

7) Now, according to the Constitution can one state (for example Rhode Island ) have one set of laws regarding marriage and other state (Montana) have an entirely different set of laws?

States are allowed to establish their own laws as long as they do not interfere with the Constitutional rights of United States citizens. They can decide length of waiting periods, blood test rules, and ages for consent. Until 1967, some states tried to prevent interracial marriages, but in Loving v. Virginia, the Supreme Court unanimously eliminated all race-based restriction on marriage in the United States. Of course the current gang of four was not on the Supreme Court then.

8) I may be wrong, but aren’t there group marriages where some cults or sects are able to have more than one wife?

Justice Alito is afraid that allowing same-sex marriage would open the door for the legalization of group marriages, which no one seems to be advocating for at this point. Jon Stewart on the Daily Show had a very good response. Why should gay people who want to get married be held responsible for other people’s behavior? No one is challenging heterosexual marriage because it opens the door to group marriage.

9) Is the right to be married EMBEDDED in the Constitution or hidden away somewhere?

The Constitution does not discuss marriage, but the ninth amendment in the Bill of Rights is clear that “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That means that even though marriage is not discussed in the original Constitution, people still have a right to get married if they want to.

10) Alan, we always hear about stupid, ridiculous, dopey laws that are on the books. Can you share some for our readers?

These are a few I included in my Huffington Post article on same-sex marriage. Currently in Mississippi it is illegal to curse in public; cannibalism is punishable by up to fourteen years in prison in Idaho; students break the law in Connecticut if they give a term paper to a friend; the Texas state constitution demands that all state elected officials swear to their belief in a Supreme Being; in New York it is illegal for three or more persons wearing masks to gather in public except for masquerades and Halloween; Oklahoma still has a law declaring the existence of an international communist conspiracy committed to the overthrow of the governments of the United States and Oklahoma; and in Virginia, the state that claims to be for lovers, sex remains banned outside of marriage. Virginia law also apparently dictates the proper way to have sex.

State legislatures can declare the moon is made of green cheese, two plus two equals five, the Earth was created in six days, belief in science is a left-wing conspiracy, or that marriage can only be between a man and woman.

However, it is the job of the United States Supreme Court to ensure state law does not violate two conditions. Under terms of the first amendment, they must show their proclamation is not ensconced in a particular religious belief. Under terms of the fourteenth amendment, laws cannot not discriminate against citizens of the United States or deny any person due process of law.

11) What have I neglected to ask?

I do not know what will happen next. I expect a divided Supreme Court decision. Many commentators believe Anthony Kennedy, who may be the only traditional conservative on the Supreme Court, will be the swing vote. The Court could decide to lift all bans on same-sex marriage, uphold bans but require that states recognize out-of-state same-sex marriages, or keep the current patchwork in place where some states recognize same-sex marriages and others don’t. As I said earlier, I have no confidence in this court.

The one judge who seemed most on target in her questions and comments was Justice Sonia Sotomayor who demanded to know from opponents of same-sex marriage “How does withholding marriage from one group — same-sex couples — increase the value to the other group?” She also wanted to know if “the right to be married is embedded in our Constitution, why, then, can the state bar gay people from this ‘fundamental’ right?”

Justices Elena Kagan and Ruth Ginsburg also deserve credit for challenging the “procreation-centric view of marriage.” They wanted to know if opponents of same-sex marriage thought it would be legal to bar people from getting married who do not want to have children or perhaps were already too old. I thought they were being appropriately sarcastic.

While the issue was not raised in these court proceedings, the fear that permitting same-sex marriage would lead to the legalization of marriages between people and animals has been raised in other United States courts. But opponents of human-animal marriage should not worry. Constitutional rights in the United States are only granted to people.

Alan Singer, Director, Secondary Education Social Studies
Teacher Education Programs
128 Hagedorn Hall / 119 Hofstra University / Hempstead, NY 11549

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  1. Bill Pruden

    As a long-time high school American History and Government teacher, one who earned a law degree before turning to teaching, I follow the Court’s work with great interest and while I do not consider myself qualified for the Court either, it is not because of a personal history of activism/active involvement in the political process that includes work as a legislative assistant in both a state senate office as well as a Congressional office, not to mention a couple runs for elective office. Far more often than not I oppose the rulings and the legal approach of Justices Scalia, Alito, and Thomas, as well as the Chief Justice, but in studying the Court and its members for most of my adult life, I have come to the conclusion that one can differ and one can approach the issues in different ways but that does not mean that justices who differ have violated their oaths or are engaging in unseemly or improper activism. Yes, each of the 4 members cited here served in governmental positions prior to their appointment to the Court that could lead one to believe they might have definite political views–and the confirming Senators know that. But the same could be said of former Solicitor General Elena Kagan, women’s right advocate Ruth Bader Ginsburg, and former Ted Kennedy aide, Stephen Breyer, not to mention, Louis Brandeis, William O. Douglas, Byron White, Hugo Black, the list goes on and on. Indeed, more than a few current commentators have argued that the problem with the modern Court is less their alleged ideological bias than their lack of any formal political experience of the type that allows them to really understand how the law impacts the people it is intended to serve. More than a few analysts look longingly to a time when the politically honed sensitivities of an Earl Warren could influence the Court’s understanding of how an issues impacted the people. Such was the idea behind offers of Court seats to Mario Cuomo and George Mitchell by President Clinton. Maybe that is just liberal nostalgia, but as I said, from an ideological perspective is a time about which I am nostalgic, and yet, I do not not–did not last summer when I read Bruce Allen Murphy’s impressive but damning biography of Justice Scalia–believe that he was in any was unqualified or abdicating his responsibilities. To the degree that is a factor, it goes back to the 1986 Senate that voted 98-0 to confirm the nation’s first Italian American justice whose record was, in fact, little different, if less extensive, than Robert Bork’s who they they denied the following year. But that is another story and result of politics, which is ultimately what this is all about. In the end, we must remember that the United States is a country was founded in dissent and differences, and no nowhere is that more evident than on the Supreme Court.

  2. Kenneth Bernstein aka teacherken

    A slight correction to Alan’s final statement: he needs to clarify that the “people” to whom rights are granted by the Constitution includes, since 1886, included Corporations: see Santa Clara County v. Southern Pacific Railroad Company, 118 US 394. This notion was most recently extended in the Citizens United decision which totally distorted campaign financing.