OK, this is no big surprise. The man plays make believe about everything. He is a one-man fantasy factory, if the only fantasies you want are blood-soaked epics where minorities persecute majorities until an angel shows up and sickles people into stadia of blood. But what I always find adorable is when he plays make-believe by pretending to know how the law works, and setting up dialogues that read like a five-year-old’s idea of what a court case looks like.
In his latest piece for Instant Analysis, what used to be called One News Now and is the American Family Institute pretending it has a news service (see? They all like to play these sorts of games there), Fischer tries to make the point that even the DOMA and Prop 8 cases going to trail, especially to the highest court in the land, is a loss for his side of the culture wars. I’m inclined to agree on that point, but then he lays out a hilarious fantasy conversation between a judge, as played by Craig T. Nelson (or Jesus, or him. I’m not sure Fischer knows the difference), and a bumbling lawyer who apparently got his law degree yesterday and is played by Jim Carrey on barbiturates.
But let’s begin with his introduction to this greatest court scene since To Kill a Mockingbird.
We are faced once again with the dreary, dismal prospect that one black-robed tyrant, Anthony Kennedy by name, will decide marriage policy for 315 million Americans.
Our Founders must be rolling over in their muskets and powder, aghast at the servile submission of a once-free people.
I bolded the above sentence because I’m somewhat angry at Fischer. Not because of his backward and horrible beliefs, which do sicken me, but because he makes this way too easy. I mean, Ceiling Cat be praised, this is what we expect a parody of a wingnut to say! “Rolling over in their muskets and powder”? Is this because the Founders were famously all shot out of canons upon their death? Is this an allusion that, like the hymn Jerusalem, the Founders slept with dangerous loaded weapons and were buried the way they lived?
Anyway, we continue.
When Prop 8 was first challenged in federal court, this is how that initial court appearance should have gone.
Judge: “The people of California have amended their own state constitution to define marriage as the union of one man and one woman. Mr. Attorney, I’m looking in vain for that article of the federal Constitution that explicitly grants me any authority whatsoever to disenfranchise 7 million voters and set aside a state constitution I do not like. I have read the Constitution forward, backward, sideways, and from right to left and I still can’t find it. Can you?”
Ohhh! Ohhh! Me! I can!
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
That’s actually the entire purpose of the Supreme Court. That’s why it was ruled in Marbury v Madison that “an act of the legislature repugnant to the constitution is void.” There is a reason why the vast majority of cases that the Court takes up they end up overturning at least part of the law in question, because if the law is valid, they have no need to grant cert in it in the first place. Only in cases where they are actively seeking to establish precedent on contentious legal matters do they take up laws that they then proceed to uphold.
But in Fischer’s world, courts are only good when they support god’s law, as read by Bryan Fischer.
Anyway, back to Fischer’s Fantasies.
“Well, your honor, it’s implied in there somewhere. Like in the 14th Amendment.”
“Mr. Attorney, I have read the 14th Amendment repeatedly, and I find no mention of the phrase ‘state constitution’ and in particular I find no mention of the word ‘marriage.’”
First of all, see what I mean about our fictional lawyer getting his law degree yesterday? It’s part of this right-wing fantasy that they are automatically smarter than everybody else, but since their reasoning often makes no sense, they have to design their straw men to be so dumb as to no longer be believable. Listen to the recordings from the trial yesterday and tell me if you can imagine Ted Olson (who is a conservative, but arguing for marriage equality) ever saying, “it’s implied in there somewhere”. Also, if you can imagine any judge in the country who hasn’t heard of the ninth amendment and the avalanche of court precedent that a professional reading of any part of the Constitution requires.
“Uh, well, they’re not in there, your honor. But, you know, the Constitution is a living document, so I’m sure it’s grown by now to include all that.”
“Mr. Attorney, I am not interested in some penumbra or emanation, I want chapter and verse. Where does this Constitution explicitly grant the federal judiciary the authority to overturn state Constitutions?”
Well, the above bit where the judicial branch is designed to do just that, and the idea that the federal Constitution is the supreme law of the land, so violations of it, even in state constitutions, are illegal. That one is fish in a barrel.
The funny thing is the line about penumbras and emanations. Conservatives love to rail against this idea, as given name in Griswold v Connecticut that the rights established in the Constitution cover more than just the exact things mentioned in it. However, I think that Fischer would be very upset if, for example, the government said that there is no Constitutional right to attend private schools because Pierce v. Society of Sisters [268 U.S. 510 (1925) was decided by penumbral reasoning. Or that there is no place in the Constitution that says that a court can dismiss a case based on “standing,” which is an entirely penumbral reading of the above quotation from Article III, section 1. How about Sovereign Immunity, which prevents foreign nationals from suing states? All totally penumbral.
He goes on to set out two more entirely hilarious parodies of a court case from his warped imagination, all ending with “get out of my courtroom” Because that’s how the American justice system works. To borrow a phrase, “black-robed tyrants” get to decide on a whim what does and does not get heard at trial. It’s amazing how Fischer promotes capricious decisions by single, unelected people when they’re part of his perverted puppet theater.
We have become so accustomed to the dictatorial actions of unelected fascists on the federal bench that we have failed to see that we are no longer citizens but serfs. We now wait meekly and submissively for nine mini-gods swinging gavels like scimitars to tell us what marriage policy must be, long after we and our elected representatives have settled matters in precisely the manner outlined by our governing documents.