The Pope's Message: Will Minds Change?

Pope Francis spent much of his time in the U.S. speaking on the need to welcome immigrants, protect the environment and help the poor.

Regarding his speech to Congress, The Huffington Post writes, "In his wide-ranging 3,404-word address ... the pope called for action to protect refugees, eliminate capital punishment and stop war, yet used a mere 21 words to allude to abortion and only 54 to touch vaguely upon the fact that same-sex marriage is now legal across the United States.

"On abortion, the pope’s comments were tucked into a larger discussion on the the Golden Rule, which 'reminds us of our responsibility to protect and defend human life at every stage of its development.' But he did not say the word 'abortion.'

"On marriage, the pope had a few more words. 'I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.'"

So why is the pope calling upon the U.S. to accept more immigrants?

According to a 2013 U.N. report, "Trends in International Migrant Stock: The 2013 Revision," immigrants form 14.3 percent of the U.S. population.

They compose no more than 4.8 percent of any other country's population; 19.8 percent of all the world's immigrants reside in the U.S. No other country has accepted more than 4.8 percent of the world's immigrants. The pope's home country, Argentina, has accepted 0.8 percent!

There are 45,785,090 immigrants in the U.S. No other country has accepted more than 11,048,064 immigrants.

And why is the pope telling the U.S we must do more for the poor? Is there any other country that presently does more? In the U.S., we have Social Security and Medicare for the aged. We have Social Security Disability and Medicare or Medicaid for the disabled.

We have the Supplemental Nutrition Assistance Program for the "poor." (A family of one with a maximum annual income of $15,301 is eligible, as is a family of four with a maximum annual income of $31,525.) We provide free K-12 public school education for every American child, and special education for disabled children. We provide unemployment insurance for those who lose their job. HUD helps apartment owners to offer reduced rents to low-income tenants to make affordable apartments available for low-income families, the elderly and persons with disabilities. HUD also provides the Section 8 vouchers to allow those with low incomes to pay for all or part of their rent. And nearly half of those (47 percent) who report income pay no federal income tax!

Is the plight of the "poor" in the U.S. more dire than the plight of the “poor" almost everywhere else in the world? If so, why do we have 45,785,090 immigrants? Why are Mexican and Central American immigrants pouring into this country? And why aren't people leaving the U.S. to live in Mexico, Russia or Ethiopia?

And why is he lecturing America on the need to be good stewards for the environment? Haven't we cleaned up the Great Lakes? Can you recall a time when raw sewage was dumped into our rivers? Don't we now have tertiary treatment? Can you remember driving through Gary, Ind., when smog continually hung over the city? Is that the case now? I can remember when some cars got seven miles to the gallon, and spewed exhaust. By 2016, won't American cars and light trucks have to average 34.5 mpg?

Would America be a better place if we immediately ceased heating and cooling our homes with fossil fuels?

In our courts, once the judge determines the witness to be an "expert,” that witness can give his opinion  on the ultimate issue in the case without stating facts that form the basis of that opinion, e.g., "I think Dr. X was guilty of malpractice when he removed Mrs. Y's appendix.” But what good is that opinion without setting out the facts that form the basis of that opinion? "Mrs. Y only wanted him to remove a wart on her big toe!"

So what will be the long-term effect of the pope's words?

When a pope addresses matters that traditionally are within the realm of "faith and morals," it is there that the pope is most authoritative — even for those who reject his infallibility. But when he speaks on quantum physics, absent a showing that he has a background in quantum physics, he lacks credibility. Similarly, his background as a bishop in Argentina in no way qualifies him as an expert on the U.S, our capitalist system or our immigration practices.

Of course, he may be utilizing material prepared for him by experts. But absent a showing of the expertise of his experts, it is entirely reasonable to discount the pope in areas such as biology, physics, chemistry, geology, economics and U.S. history.

Indeed, many of the same people who extol the pope's genius when he speaks on immigration and the environment would label him a "Neanderthal" when he speaks on things on which he should have expertise: abortion, contraception and traditional marriage.


For those reasons, I believe the pope's message will be largely forgotten or ignored within the week. Those who are opposed to "open borders” will remain opposed. Those who believe "God helps able-bodied people who help themselves" will continue in that belief. And those who believe "global warming" to be a scam will conclude the pope is out of his element. Meanwhile, the killing will go on in the Middle East, and in the Planned Parenthood clinics.

Posted: Friday, October 23, 2015 11:00 pm  QuadCitiesOnline

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Same-sex Marriage Ruling Carries Risks

"President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, 'marriage' is now nothing more than a union between any two consenting adults. So, then, what is the President’s position on polygamy? Is it  'evolving,'as well? If so, why is the number 'two' sacred? If 'consent' between 'adults' is the key, what’s wrong with consensual polygamy?" -- John Donald O'Shea,  May '12,  "Is polygamy a constitutional right?"

The U.S. Supreme Court in Obergeffell v. Hodges (2015) has now held that two people of the same sex have a constitutional right to marry. Do you see any problems with that holding? Risks?

If fundamental liberty requires that any two (competent) consenting individuals must be allowed to marry, how can there be a bar to the marriage of three -- or more -- (competent) consenting adults?

What constitutional principle demands that any two consenting adults must be allowed to marry, while at the same time denying the same fundamental liberty to three or more consenting adults?

If the sex of the partners is irrelevant, and if all that is required of the two people is their consent, how can three or four — or more — consenting adults be barred from practicing polygamy?

Justice Anthony Kennedy, writing for the majority in Obergeffell, largely ignores those questions.

Chief Justice John Roberts, in dissent, however, squarely addresses the polygamy (plural marriage) question, with emphasis on the “historical aspect of marriage being between a man and a woman for over a 1,000 years.”

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

“Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.

“If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
The chief justice then examined the majority’s justifications for same-sex marriage, and shows they would also justify polygamy.

“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

“If ‘there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children?

“If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

So if two consenting adults have a constitutional right to marry, why not three? Is two more sacred than three? More constitutional? If the states can’t constitutionally define marriages as being “between a man and a woman,” what constitutional principle  would allow same-sex marriage, but bar polygamy?  Is the harem now legal in America?

Justice Kennedy, speaking for the majority, also gives a fourth justification: “With respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

But to say there is no risk of harm to third parties is absurd. Already a baker in Oregon has been assessed $135,000 in damages for failing to cater a same-sex marriage. If that verdict stands, Justice Kennedy’s assertion that the right of two consenting adults poses “no risk of harm to third parties,” comes from five judges wearing blinders.

Nor does Justice Kennedy fear for the First Amendment religious rights of people opposed to same-sex marriage.

“Finally, it must be emphasized that ... those who adhere to religious doctrines, may continue to advocate ... that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to  teach the principles ... central to their lives and faiths, and to their own deep aspirations to continue the family structure.”

Justice Kennedy reassures Americans that may still believe and teach that same-sex marriage is wrong. But do you see any assurance that Americans can still engage in the free exercise of their religion -- also guaranteed by the first Amendment -- by refusing to participate in or assist in a same-sex marriages?

Certainly the Oregon Labor Commission didn’t. How else do you explain their $135,000 damage assessment? What about contentious objectors? Does not the free exercise of religion guarantee the right not to participate -- to contentiously object? To not seemingly approve?

Make no mistake: I am not opposed to people or their legislators permitting same-sex marriage. That’s called democracy. The issues raised by Justice Roberts and the Oregon damage award spotlight the folly of judges deciding public policy questions and creating new constitutional rights under the guise of interpreting  the constitution.

Posted: Friday, July 17, 2015 11:00 pm, QCOnline

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Marriage Ruling, Constitutional Law or "Putsch?"

               " ...  nor shall any State deprive any person of life, liberty, or  property, 
               without due process of law; nor to deny to any  person within its 
               jurisdiction the equal protection of the laws."
                                                                      -- U.S. Constitution, 14th Amendment




On June 26, the U.S. Supreme Court in Obergefell v. Hodges, held “[T]he right to marry is a fundamental right inherent in the liberty of the person. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

Regardless whether you favor or oppose same-sex marriage, this decision is terrible constitutional law. (Note: I am discussing only constitutional law; not whether same-sex marriage is right or wrong.)

My test of whether something is constitutional or not, is answered by this simple question:

If the people who ratified the constitution, and later approved the 14th Amendment in 1868, had known at those times that the Constitution and the amendment would subsequently be given the interpretation that the five judges in this case gave it, would they have ratified the Constitution or approved the 14th Amendment?  In ratifying the 14th Amendment, did the American people ever, for an instant, dream that the word “liberty” as used in the amendment encompassed the right of same-sex couples to marry?

In a democracy the people -- not the judges —-- have a right to rule. Our Constitution, and our state constitutions, give the people and their elected representatives the power and the right to make the laws. The judges have a sworn duty to support the Constitution; not to rewrite it. There is nothing more destructive to the concept of constitutional government  than five unelected judges ignoring the intent of the people who ratified the Constitution and amendment, and giving it their own more enlightened modern-day interpretation.

When judges “discover” a heretofore unknown constitutional right, they strip the people and their  elected representatives of power to decide the question for themselves.

Justice Anthony Kennedy, author of the majority opinion writes:

“The generations that wrote and ratified the Bill of Rights and the Fourteenth
Amendment did not presume to know the extent of freedom in all of its dimensions,
and so they entrusted to future generations a charter protecting the right of  all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

“The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

“The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”


So would the people who ratified the Constitution (or the 14th Amendment) have done so, if before they voted to ratify, they had been told that someday five judges  -- armed with “new insights” -- would say the word liberty as used in the Constitution includes the right of same-sex couple to marry?

Stripped of all legal gobbledygook, what Justice Kennedy really means is that the people who wrote the Constitution and the 14th Amendment were too benighted to understand that that liberty — as they used the term — meant the right (liberty) of people to contract same-sex marriages and that it was the duty of five 21st-century judges with new insights and a better formed understanding to fix that omission, even if it meant unelected judges ignoring the intent of the American people who ratified the Constitution, and later, the 14th Amendment.

In his dissent, Justice Anontin Alito excoriates what he labels “judicial hubris.”


“But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.

"They see what lesser legal minds -- minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly -- could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them [i. e., the five unelected judges composing the majority] the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

Today, many Americans are ecstatic. But if five judges can redefine “liberty” to encompass same-sex marriage, tomorrow five other judges can redefine “person” to exclude blacks and fetuses, as they did in the Dred Scott and Roe v. Wade opinions. Today’s benevolent oligarchy, can all too easily become tomorrow’s tyranny.

By the way, “putsch” means “a violent attempt to overthrow a government.”



Posted: Friday, July 10, 2015 11:00 pm - QCOnline
By John Donald O'Shea




Copyright 2015
John Donald O'Shea

Should Polygamy Be a Constitutional Right?

President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, "marriage" is now nothing more than a union between any two consenting adults.

So, then, what is the President's position on polygamy? Is it "evolving," as well? If so, why is the number, "two" sacred?

If "consent" between "adults" is the key, what's wrong with consentual polygamy?

I have recently opined, indicating that "marriage" is a "fundamental right" of the American people and, that while not specifically enumerated in the Bill of Rights, that it is protected by the Ninth Amendment. In my earlier discussion, I defined marriage as a consentual union between one man and one woman. I used that definition because that is what people who came to live in the United States prior to the enactment of our Constitution in 1788 understood marriage to be. I now suggest, for reasons explained below, the right to marry -- between a man and a woman -- is also protected by the First Amendment which guarantees the "free exercise" of religion.

But what about people who have religious beliefs that polygamous unions are mandated by their religion? Do they have a right to practice polygamy in the United States, given the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion?"

There was a time in the late 19th century when the Mormons believed that polygamy was mandated by their religion. They argued that the First Amendment which provides that "Congress shall make no law ... prohibiting the free exercise" of religion" guaranteed that right.

That was the question answered by the U. S. Supreme Court decision in Reynolds v. U. S. (1878). In that case, George Reynolds, a Mormon, was found guilty under a federal statute which prohibited bigamy in the Utah Territory. On appeal to the Supreme Court, he raised the question: "Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?

As you read the excerpts from the Supreme Court's opinion below, notice the importance that the court attaches -- for First Amendment purposes -- to the fact while monogamous marriages were recognized throughout the European countries from which the colonists came, and that polygamy was not. The Reynolds court, therefore, concluded that polygamy was not part of the religious freedom that the First Amendment protected.

"The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.

The precise point of the inquiry is, 'what is the religious freedom which has been guaranteed?'

"Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void ... and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical ... courts, and until the time of James I, it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil, the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage ...."

The Reynolds court, not withstanding that polygamy was a consentual relationship between adults, denied polygamy 1st Amendment protection. So not withstanding the President's "affirmation," where does that leave "same-sex" marriage constitutionally? I raise that question because at the time our Bill of Rights was adopted, as in the case of polygamy, nobody in America seriously claimed that same-sex couples had a right to "marry."


Posted Online: May 17, 2012, 3:00 pm - Quad-Cities Online
by John Donald O'Shea 
Copyright 2012, John Donald O'Shea