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Dear Emperor Kennedy:

I humbly beseech your Majesty for redress. On my knees, sir, I beseech thee. I have information that the lawyers representing four states in the same sex marriage case, Obergefell, and who argued in favor of states’ laws prohibiting same sex marriage were afraid to do things that they are legally allowed to do. In fact, they were so afraid of offending you and the rest of the Court that they didn’t even ask for the recusal of the two Justices who have officiated over same sex marriages. They were afraid that the Court might retaliate against them and attack their state laws out of some kind of petty meanness, as if you and your colleagues wouldn’t really look at the law. I apologize for that kind of attitude toward the Imperial Court. I know you couldn’t possibly want that. Should our justice system operate under such intimidation from the highest court that lawyers don’t even represent their clients zealously? But, really, are the other Justices that petty?

            There are other things you need to know about, and I bring you information you need to know, your Highness. It has come to my attention that some of the lawyers who prepared briefs and argued that you deign to not find disfavor upon their states’ laws banning same sex marriage, gave up valid arguments. You see they thought you were the key; they were right. They saw from the Lawrence v. Texas case of 2003 and the Windsor case (re: DOMA) of 2013 that you really care about this particular group who wants same sex marriage. They saw that the four liberal Justices were utterly committed to a particular result no matter what the law or the Constitution requires. So, they’ve given up on them. So you’re the swing vote, the place you’ve so wisely placed yourself in so many cases.

Now, here’s where I’m acting as informant. These lawyers gave up legitimate legal arguments that should protect their states’ laws because they were afraid of you. Of course, sir, they should be afraid of you. Don’t get me wrong, you are entitled to fear when your lone vote could doom the laws and constitutional provisions of dozens of states around the country without a vote or constitutional convention. Your lone vote can wipe out millions of peoples’ votes, completely change entire legal and judicial systems, so I respect your power. (By the way, what part of federalism is that? And where is it in the U.S. Constitution. I know you in your great wisdom can tell me, but I can’t find it. It’s not in the Supremacy Clause.) I think they should have trusted your Highness’ beneficence and told you about all their legal arguments. They shouldn’t have been afraid that you might have used their arguments against them, and they shouldn’t have hidden them from you and tried to find the one narrow little reason that might lead you to respect their states’ laws – in part. I truly trust your Highness’ wisdom and do not think you would try to find a way to destroy laws because of your own personal opinion, religious belief, and morality.

I believe you’ve read the Tenth Amendment, at least at some point of your career. At least, you had to see it in Justice Scalia’s or Justice Thomas’ dissents. You remember, it’s the one in the U.S. Constitution that says the rights not delegated to the federal government are reserved to the states and to the people. I know there’s got to be something left for the states and the people, or the founders wouldn’t have written it. But that was so long ago – two hundred something years ago. I thought the federal courts were part of the federal government. Was I wrong? Because sometimes it seems like your Court thinks it’s not. Sir, I don’t mean to sound in any way critical, but sometimes it seems as if the Court giveth and taketh away, kind of like the Lord, without seeing itself as part of the federal government, sort of like it’s separate from everyone, above it all.

But I digress. Forgive me. I don’t want you to be angry before I even inform you of what you need to know. So these lawyers who argued for four states before you were trying to hide things from you, thinking, I guess, that they can fool you. But I know that they can’t fool your Highness, who is like an angel from heaven seeing through all the foibles of man. Here’s an example of something they hid from you – the religious nature of marriage. They made their arguments to you as if marriage has no religious basis at all. Can you imagine something as foolish as that? Never mind that tens of millions of Americans think it originated in some Garden of millennia ago (how quaint!) or that some states called their constitutional amendments, “Sanctity of Marriage” or something to that effect. I mean, how can we possibly allow any religious influence upon any law in existence in this country?! Must we live in the past?  But those lawyers for those four states were so feckless!  Does every state have to be stuck with the result when they didn’t use all the arguments before you that they could have?  Or would it have mattered at all?

But even as I say all that, I wonder if we’re not creating some kind of reverse religious test clause, by implication, telling public officials that they cannot interpret or write laws that have any religious basis. Let’s assume for a moment that I’m one of these officials who actually believe that marriage was created by the God of the bible. If I’m a legislator, I won’t be allowed to believe that anymore, will I? At least not for pubic policy purposes. For example, if one of my constituents comes to me and wants a law passed to make marriage, say, into a polygamous mass of mixed gender people, sort of a sanctified orgy, I really would have a hard time objecting, wouldn’t I. Whom would such a definition of marriage harm? To expand it beyond the heterosexual marriage, the same sex marriage advocates argued that their being married doesn’t harm anyone who is heterosexual and married. So how can we tell the group-marriage people their idea of “marriage” is harmful? Well, at least we can’t use the bible, I suppose. Can we use the bible to influence any law now? Does the First Amendment protect public officials or just regular people like me? I know you know the answers to these questions.

I know that your Highness can do as good a job as the Lord and redefine marriage, but I wonder if you want to alienate tens of millions of Americans who feel helpless in the face of unelected judges, not that you don’t have the power to do whatever you want, sir. And I know your and the other Justices’ wisdom is beyond compare. Why just a couple of months before the Obergefell opinion, I saw an interview with one of the Justices who, when asked about same sex marriage and changing the laws on marriage across the country, she said that the states are ready for same sex marriage. I was amazed. Without a scientific polling company or taking a vote in any of the states, she just knew what the states wanted. What wisdom! What god-like insight!

But even though you too probably have that miraculous power, I think you, sir, wanted to make a decision that was rational and defensible. Could I offer the humblest shadow of a penumbra of a tip? And I hate to state the obvious, but writing an opinion that said the states can’t define marriage and you can, it appeared like the act of an arbitrary Emperor of the United States. I know you are not, but you doing that very thing looked bad only two years after saying the opposite. You said in 2013 that the federal government can’t define marriage differently from how the states define it. It sort of tarnished the Divine Emperor’s robe to show such a quick change of mind. I think even the non-lawyer on the streets saw through that. And it appeared as if you think that the federal courts are not a part of the federal government, if you catch my drift. And the Divine Justice doesn’t want to appear too overbearing in the rightful exercise of that power your Court has so judiciously and cleverly given to itself over the decades. Remember Machiavelli.

However, I do have to admit that your DOMA opinion of 2013 really wasn’t that great. Forgive me for offering criticism of your Highness’ writing, but I know you didn’t write it. You have very bright law clerks to write things like that, but you really need to consider who’s doing the writing. Even those in favor of same sex marriage thought it was an opinion that risked harming, dare I say it, the legitimacy of your Court.

Back to the issue at hand. When the Divine Majesty issued the Obergefell opinion, doing away with states’ laws on same sex marriage, perhaps we should have done away with that worn out constitution and the judicial process too. Now that there are no limits to who can marry, why can’t the states just avoid all that expensive litigation? They could simply submit for your approval any law of marriage that they are considering. I know advisory opinions are disfavored, but it would save so much time and expense of litigation.

All you’d have to do is have a law clerk read the law, sum it up for you so your valuable time isn’t wasted, then issue a thumbs up or thumbs down, like the Roman Emperors did in the Coliseum. You could even prepare a stamp with your Imperial Initials or something to stamp a picture of a thumb up or down on the statute. It would make the black robe look downright plebian compared to the power of the thumb stamp. It would become a national TV event every time a state submitted a law. For example, the whole country would wait for the announcement on Idaho’s law restricting marriage to people of a certain age, for example. People would be on the edge of their seats. They’ll ask, “What do you think it will be tonight? Thumbs up or thumbs down?” It could be like a reality TV show!

I offer one more humble tip. Like I said, I know that you study the law and don’t act in pettiness. I know your Court is very legitimate. I would never want to offend or anger you, but here’s a tip. When lawyers from the Sixth Ciruit argue before you, seeing that all of them don’t respect you like I do, you should prepare them for their appearance before you and the other Justices. You can put your rule on the Court’s website. How do they kiss the ring? You need to let them know that their lips should not brush your skin. You know that’s improper. But they don’t. It would so help them to act respectfully toward you and the others.

One more question. I’ve heard people saying that with federal courts changing something as fundamental as marriage, there’s no place to appeal now except to the Court of Heaven. Do you think that Court will grant cert from that decision issued by your Court that is contrary to Heaven’s laws? Or will it recognize your Court’s view of the Constitution as forbidding interference from a foreign court like that of God Almighty, the Creator of all? How would you know if that Court overruled your Court’s decision? Would it be in writing? Or would it take some other form?

Please held the understanding of . . .

This Humble Lawyer