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AMICUS BRIEF OF KENNETH L.

SMITH
IN SUPPORT OF RESPONDENT

______________________________________________________________________________

Kenneth L. Smith, in propria persona


23636 Genesee Village Rd.
Golden, CO 80401-7044
e-mail: 19ranger57@earthlink.net
Telephone: (303) 526-5451

0
TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INTEREST OF AMICUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THERE ARE NO NON-FUNDAMENTAL RIGHTS . . . . . . . . . . . 6

II. THIS COURT HAS NO LEGITIMATE DISCRETION


IN THIS MATTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. LIKE IT OR NOT, "SPOUSE" MEANS "SPOUSE" . . . . . . . . . . . 14

IV. ANALYSIS OF PERTINENT ISSUES . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1
TABLE OF CASES AND AUTHORITIES

CASE PAGE

Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


Barron v. City of Baltimore, 32 U.S. 243 (1833) . . . . . . . . . . . . . . . . . . . . . . 19
Brusewitz v. Wyeth, 562 U.S. 223 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Caldwell v. Texas, 137 U.S. 692 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Connecticut Nat'l Bank v. Germain, 503 U.S. 249 (1992) . . . . . . . . . . . . . . . 16
Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . 18
King v. Burwell, 135 S.Ct. 2480 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Lake County v. Rollins, 130 U.S. 662 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . 16
Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Michigan v. Bryant, 562 U.S. 344 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Moore v. East Cleveland, 431 U.S. 494 (1977) . . . . . . . . . . . . . . . . . . . . . . . 10
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) . . . . . . . . . . . . . . . . . . . . . . . . var.
Palko v. Connecticut, 302 U.S. 319 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Pidgeon v. Turner, No. 15-0688 (Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . 18
Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992) . . . . . . . . . 11, 18
Reno v. Flores, 507 U.S. 292 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Shapiro v. Virginia, 394 U.S. 618 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Carolene Products Co., 304 U.S. 144 (1938) . . . . . . . . . . 10
Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) . . . . . . . . . 5

2
CONSTITUTIONS AND STATUTES

PAGE

Magna Carta [1215] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14


Magna Carta [1297] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Md. Declaration of Rights art. XVII (Md. 1776) (repealed 1867) . . . . . . . . 15
Mass. Const. part I, art. XI (Mass. 1780) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
N.C. Declaration of Rights 18 (N.C. 1776) . . . . . . . . . . . . . . . . . . . . . . . . 15
N.H. Const. art. 14 (N.H. 1784) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
N.J. Const. art. XXII (1776) (repealed 1844) . . . . . . . . . . . . . . . . . . . . . . . . 15
Pa. Const. art. IX, XI (1790) (repealed 1838) . . . . . . . . . . . . . . . . . . . . . . 15
Vt. Const. art. IV (1786) (repealed 1793) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
U.S. Const, amend. IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const, amend. X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const, amend. XIV, 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

OTHER AUTHORITIES

PAGE

Annals of Congress, Vol. 1 (1789) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8


Bacon, Francis, Essays (1620) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Barnett, Randy, Restoring the Lost Constitution: The Presumption
of Liberty (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10
Scalia's Infidelity: A Critique of Faint-Hearted Originalism,
75 U. Cin. L. Rev. 7 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Blackstone, William, Commentaries on the Laws of England,
Vol. 4 (1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Coke, Edward, Institutes of the Laws of England, Vol. 1 (1642) . . . . . . . . . 13
Confirmation Hearing on the Nomination of John Roberts to be
Chief Justice of the United States: S. Comm. on the Judiciary,
109th Cong., 161 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3
OTHER AUTHORITIES (CONT.)

PAGE
Confirmation Hearing on the Nomination of Judge Sonia A.
Sotomayor to be Associate Justice of the Supreme Court
of the United States: S. Comm. on the Judiciary,
111th Cong., 245 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Gibbon, Edward, The History of the Decline and Fall of the
Roman Empire, Vol. 4 (6th Am. Ed. 1830) (1780) . . . . . . . . . . . . . . . . . 13
Jefferson, Thomas, Letter (to Wilson Nicholas), Sept. 7, 1803 . . . . . . . . . . 12
Letter (to Edmund Pendleton), Aug. 26, 1776 .. . . . . . . . . . . . . . . . . 13
Kagan, Elena, Richard Posner, the Judge,
120 Harv. L. Rev. 1121 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Llewellyn, Karl N., The Common Law Tradition: Deciding Appeals (1960) 9
Madison, James, Writings of James Madison: 1819-1836
(G. Hunt ed. 1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
McConnell, Michael, Natural Rights, Enumerated Rights,
and the Ninth Amendment, Sumner Canary Lecture
(Case Western U., Oct. 28, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
McGaughy, Lauren, At GOP Leaders' urging, Texas Supreme
Court will consider undoing gay spousal rights,
Dallas Morn. News, Jan. 21, 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Nomination of Judge Clarence Thomas to be Associate Justice of the
Supreme Court of the United States: S. Comm. On the Judiciary,
102nd Cong., 144 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Posner, Richard A., How Judges Think (Harv. U. Press 2008) . . . . . . . . . . . . 9, 11
The academy is out of its depth, Slate, Jun. 24, 2016 . . . . . . . . . . . . . 11
Scalia, Antonin, Historical Anomalies in Administrative Law,
Y.B. Supreme Court Hist. Socy. 103 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 19
God's Justice and Ours, First Things (May, 2002) . . . . . . . . . . . . . . . . 12
The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989) . . 15
The Declaration of Independence (U.S. 1776) . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Federalist No. 78 (I. Kramnick ed. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 13
The People's {Ancient and Just} Liberties Assrted in the Tryal of
William Penn and William Mead (Sept. 1670) . . . . . . . . . . . . . . . . . . . . . . 8

4
INTEREST OF AMICUS

Amicus is not a homosexual, hasnt been a Texan since 1983, is not religious,

and is not acting on anyones behalf. He is a bona fide amicus, with no personal

interest in the outcome of this case.

SUMMARY OF THE ARGUMENT

Amicus respectfully submits this brief to assist the Court in ascertaining how

broadly the United States Supreme Courts recent Obergefell v. Hodges, 135 S. Ct.

2584 (2015), and Whole Womans Health v. Hellerstedt, 136 S. Ct. 2292 (2016),

decisions should be interpreted in disposition of the case at bar.

The Framers view was that rights were granted to us by God, government can

only take them away, and our rights are retained unless expressly ceded. As such,

the concept of non-fundamental rights was foreign to the Framers. As there are

no second-class rights or citizens, there is no constitutionally-valid justification

for creating second-class marriages.

This Courts duty is to interpret the constitutions we have, as opposed to the

ones we might wish for. For good or ill, by its terms, the Fourteenth Amendment

is the supreme Law of the Land, U.S. Const. art. VI, cl. 2, and any provision in

any state constitution conflicting with it is by definition void. And as Judges in

every State [are] bound thereby, id., arguments concerning the limits on federal

5
jurisdiction, Amicus Br. of Governor Abbott (filed Oct. 27, 2016), remain giggle-

worthy. But as the Dallas Morning News tartly observes,1 the scheduled juristic

spectacle in March is, ultimately, all about politics.

On the one hand, the temptation to mollify vindictive voters can be enormous.

But as Justice Scalia counsels, judges must have the courage and modesty to per-

sist when the Constitution produces results that go against [their] policy prefer-

ences. Michigan v. Bryant, 562 U.S. 344, 394-95 (2011) (Scalia, J., dissenting).

ARGUMENT

I. THERE ARE NO NON-FUNDAMENTAL RIGHTS.

Some would argue that the right to gay-marry is fundamental. Others respect-

fully disagree. But no one has ever articulated where a distinction is drawn in the

Constitution between fundamental and non-fundamental rights, or how judges can

reliably tell the difference.

James Madison would have found the distinction nonsensical. In introducing

his draft of our Bill of Rights to the House of Representatives, he explained that he

consciously avoided attempting to enumerate all the rights retained by the people,

arguing that

1
Lauren McGaughy, At GOP Leaders urging, Texas Supreme Court will consider undoing gay
spousal rights, Dallas Morn. News, Jan. 21, 2017
6
.by enumerating particular exceptions to the grant of power, it would
disparage those rights which were not placed in that enumeration; and it
might follow by implication, that those rights which were not singled out,
were intended to be assigned into the hands of the General Government, and
were consequently insecure. This is one of the most plausible arguments I
have ever heard urged against the admission of a bill of rights into this
system; but, I conceive, that it may be guarded against. I have attempted it,
as gentlemen may see by turning to the last clause of the fourth resolution.

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of


particular rights, shall not be so construed as to diminish the just importance
of other rights retained by the people, or as to enlarge the powers delegated
by the constitution; but either as actual limitations of such powers, or as
inserted merely for greater caution.

Id. at 452.

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth

Amendments. While the Ninth doesnt create rights, it is a constitutionally manda-

ted canon of construction, prohibiting judges from interpreting the Constitution in

any manner that would "deny or disparage [unenumerated rights] retained by the

people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers

to "the States respectively, or to the people." Id. amend. X. As such, government

can only infringe upon those rights that were willingly relinquished by the people,

and only when needed in order to discharge its legitimate duties as our authorized

agents. Professor Barnett refers to this foundational concept as "the presumption

7
of liberty." Randy Barnett, Restoring the Lost Constitution: The Presumption of

Liberty (2004).

A paradigmatic illustration of an unenumerated right involved young William

Penn, the Quaker who established the colony of Pennsylvania. He was arrested for

holding a religious observance outside of his meeting hall, after he and his congre-

gation had been barred entry by the Crown. He had what might seem to us today

to be a peculiar quirk: He refusedas a matter of religious beliefto remove his

hat in deference to authority. Thus, he refused to wear his own hat to the ensuing

trial, so that he wouldnt be placed in the position of having to not remove it when

the judge entered the courtroom. Angered, the judge had the bailiff place a hat on

Penns head, which he refused to remove; he was then fined forty marks, ostensi-

bly for insulting the dignity of the Court.2 Penns trial was so infamous that it was

common currency to every member of the First Congress,3 and even the suggestion

that a Bill of Rights would not have protected his progeny surely would have been

anathema to those who enacted it. See, 1 Annals at 759-61.

In a land where all men are created equal, The Declaration of Independence,

2
The Peoples {Ancient and Just} Liberties Assrted in the Tryal of William Penn and William
Mead (Sept. 1670), reprinted at http://tarlton.law.utexas.edu/lpop/etext/penntrial.html (U. of
Texas Law Library).
3
Michael McConnell, (retired judge, Tenth Circuit Court of Appeals), Natural Rights, Enumer-
ated Rights, and the Ninth Amendment, The Sumner Canary Lecture (Case Western U., Oct. 28,
2008), available for viewing at http://www.youtube.com/watch?v=bLANRrZPm-k.
8
para. 2 (U.S. 1776), the right not to genuflect to a superior authority is necessarily

implicit, irrespective of whether that refusal was borne of religious conviction. As

such, Penns was not a religious right protected by the First Amendment. But it

would seem, on its face, to be so trivial a matter that it could easily be found to be

non-fundamental. And therein lies the rub.

As a rule, judges only follow precedent when it takes them where they wanted

to go in the first place. The famed Judge Richard Posner confesses that appellate

judges routinely take indecent liberties with both facts and precedent, in an often-

transparent effort to conceal the fact that they are not so much interpreting the law

as rewriting it to comport with their personal preferencesconstantly digging for

quotations from and citations to previous cases to create a sense of inevitability

about positions that they are in fact adopting on grounds other than deference to

precedent"a process colorfully characterized as "fig-leafing." Richard A. Posner,

How Judges Think 144, 350 (Harv. U. Press 2008). Professor Llewellyn adds that,

whenever a judge wants an outcome badly enough, s/he will lie to get it." Karl N.

Llewellyn, The Common Law Tradition: Deciding Appeals 135 (1960). Still, for

the most part, judges tend to eschew dramatic changes to avoid the appearance of

writing law from the bench, thus precipitating the infamous Footnote Four.

9
In its modern iteration,4 the Footnote Four approach to rights jurisprudence

reflects this reticence, but at the price of relegating the Ninth Amendment to the

dust-bin of historyinvoking the ethereal concept of substantive due process to

specially protect only rights which judges deem as being deeply rooted in this

Nation's history and tradition, e.g., Moore v. East Cleveland, 431 U.S. 494, 503

(plurality opinion), or somehow "implicit in the concept of ordered liberty." Palko

v. Connecticut, 302 U.S. 319, 325 (1937). Courts require a "careful description"

of the asserted fundamental liberty interest, Reno v. Flores, 507 U.S. 292, 302

(1993)an engraved invitation to an orgy of judicial discretion. In turn, it has the

noxious effect of elevating some rights to the exalted status of fundamental while

disparaging and denying others, thereby doing violence to the plain meaning of the

Ninth Amendment. Barnett, Lost Constitution at 254. It creates no principled rule

of decision, as the outcome of any given dispute is more a function of the judges

personal predilections than anything else. It describes the law as it is, but not why

it is as it should be.

4
United States v. Carolene Products Co., 304 U.S. 144, 152 & fn. 4 (1938) (citations omitted).
Professor Barnett refers to its modern iteration as Footnote Four-Plus. Barnett, Lost Consti-
tution at 234.
10
II. THIS COURT HAS NO LEGITIMATE DISCRETION IN THIS
MATTER.

Richard Posner is the Donald Trump of judges: There seems to be no filter on

that tailpipe.5 In Slate, he asserted that he sees absolutely no value to a judge of

spending decades, years, months, weeks, day, hours, minutes, or seconds studying

the Constitution, the history of its enactment, its amendments, and its implementa-

tion.6 He avers that there is "a pronounced political element in the decisions of

American judges," and that the evidence of this is "overwhelming." Posner, How

Judges Think at 369. Justice Scaliawho was just as bluntadded that his own

Court was often tempted toward systematically eliminating checks upon its own

power; and it succumbs. Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833,

981 (1992) (Scalia, J., dissenting).

5
As an aside, Judge Posner loved that tweet. Copy on file.
6
Richard Posner, The academy is out of its depth, Slate, Jun. 24, 2016, at
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_cou
rt_breakfast_table_for_june_2016/law_school_professors_need_more_practical_experience.html
Justice Kagan has lauded him as the "the most important legal thinker of our time," Elena Kagan,
Richard Posner, the Judge, 120 Harv. L. Rev. 1121, 1121 (2007), if for nothing but his brutal
candor.
11
As a practical matter, the entire United States Reports is no match for a head-

strong judge, and if this Court is intent on issuing a political decision to enhance

the Justices future election prospects, there is nothing Amicus can do or say that

can dissuade you. Justice Scalia was Exhibit A, as he was about as faithful to his

originalism as Tiger Woods was to his ex-wife Elin. See, Randy Barnett, Scalia's

Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13

(2006) (collecting examples). However, if you care about the rule of law as much

as Justice Willett purports to on Twitter, this effort will not be in vain.

As Justice Scalia so adroitly put it, "the Constitution that I interpret and apply

is not living but deador, as I prefer to put it, enduring. It means today not what

current society (much less the Court) thinks it ought to mean, but what it meant

when it was adopted." Antonin Scalia, Gods Justice and Ours, First Things (May,

2002) at 17. And he was in stellar company. As James Madison observes, there is

one and only one proper way to interpret the Constitution:

I entirely concur in the propriety of resorting to the sense in which the


Constitution was accepted and ratified by the nation. In that sense alone is
it the legitimate Constitution. And if that not be the guide in expounding it,
there can be no security for a consistent and stable, more than for a faithful
exercise of its powers.

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910),

accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

12
This view of the Constitution, and a judges duty thereunder, was ubiquitous

among the Framers and their illustrious British predecessors. From time immemo-

rial, it had been understood that the office of the judge was jus dicerethe power

to declare the law only, as opposed to writing it. Francis Bacon, Essays LVI (Of

Judicature) (1620). Lord Coke wrote, "[i]t is the function of a judge not to make,

but to declare the law, according to the golden mete-wand of the law and not by

the crooked cord of discretion." 1 E. Coke, Institutes of the Laws of England 51

(1642). Blackstone adds that a judge is "sworn to determine, not according to his

own judgments, but according to the known laws." 4 Wm. Blackstone, Commenta-

ries on the Laws of England *379 (1765). In the Federalist, Alexander Hamilton

argued that to "avoid an arbitrary discretion in the courts, it is indispensable that

[our judges] should be bound by strict rules and precedents, which serve to define

and point out their duty in every particular case before them." The Federalist No.

78, at 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Historian Charles Gib-

bon adds that the discretion of the judge "is the first engine of tyranny," 4 Gibbon,

The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830)

(1780), and Thomas Jefferson saw the judge as a mere machine, expecting that

the law would be dispensed equally & impartially to every description of men.

Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

13
While testifying under penalty of perjury, every sitting Supreme Court Justice

has agreed with the Framers sentiment. Justice Sotomayor notes that the intent of

the founders was set forth in the Constitution. They created the words; they crea-

ted the document. It is their words that is the most important aspect of judging.7

Justice Thomas asserted that his job as a judge is to interpret [lawmakers] intent,

not to second-guess it.8 Chief Justice Roberts adds that the Framers were will-

ing to have the judges decide cases that required them to interpret the Constitution,

because they were going to decide it according to the rule of law.9

THERE IS NO CONTRARY AUTHORITY.

III. LIKE IT OR NOT, SPOUSE MEANS SPOUSE.

The right to equal justice under law was explicitly acknowledged in both the

first and final iterations of Magna Carta,10 and incorporated into more than one-

7
Confirmation Hearing on the Nomination of Judge Sonia A. Sotomayor to be Associate Justice
of the Supreme Court of the United States: S. Comm. on the Judiciary, 111th Cong., 245 (1991)
(statement of Judge Sotomayor).
8
Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the
United States: S. Comm. On the Judiciary, 102nd Cong., 144 (1991) (statement of Judge
Thomas).
9
Confirmation Hearing on the Nomination of John Roberts to be Chief Justice of the United
States: S. Comm. on the Judiciary, 109th Cong., 161 (2005) (statement of Judge Roberts).
10
"To no one will we sell, to no one will we refuse or delay, right or justice." Magna Carta
[1215] c. 40; id. [1297] c. 29.
14
half of State constitutions then in force.11 And if there was any suspicion that the

people abandoned this right, the Supreme Court laid it to rest:

[N]o State can deprive particular persons or classes of persons of equal and
impartial justice under the law. Law, in its regular course of administration
through courts of justice, is due process, and when secured by the law of the
State, the constitutional requisition is satisfied. And due process is so
secured by laws operating on all alike, and not subjecting the individual to
the arbitrary exercise of the powers of government, unrestrained by the
established principles of private right and distributive justice.

Caldwell v. Texas, 137 U.S. 692, 697-98 (1891) (citations omitted).

Justice Scalia added meat to the bones, summarizing Anglo-American jurispru-

dence in five incisive sentences:

Parents know that children will accept quite readily all sorts of arbitrary
substantive dispositionsno television in the afternoon, or no television in
the evening, or even no television at all. But try to let one brother or sister
watch television when the others do not, and you will feel the fury of the
fundamental sense of justice unleashed. The Equal Protection Clause epito-
mizes justice more than any other provision of the Constitution. And the
trouble with the discretion-conferring approach to judicial law making is
that it does not satisfy this sense of justice very well. When a case is accor-
ded a different disposition from an earlier one, it is important, if the system
of justice is to be respected, not only that the later case be different, but that
it be seen to be so.

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178

11
N.C. Declaration of Rights 18 (N.C. 1776) (direct quotation); Md. Declaration of Rights art.
XVII (Md. 1776) (repealed 1867) (key words used); N.H. Const. art. 14 (N.H. 1784); Vt. Const.
art. IV (1786) (repealed 1793) (same); Pa. Const. art. IX, XI (1790) (repealed 1838) ("without
sale, denial, or delay"); Mass. Const. part I, art. XI (Mass. 1780); N.J. Const. art. XXII (1776)
(repealed 1844) ("the common law shall remain in force").
15
(1989). This is the challenge to the Court: to credibly explain why some spouses

are more spousier than others.

The operative clause of the Fourteenth Amendment is pellucid: No State shall

deny to any person within its jurisdiction the equal protection of the laws. U.

S. Const. amend. XIV, sec. 1. The object of constitutional interpretation is to give

effect to the expressed intent of the Framers, Lake County v. Rollins, 130 U.S. 662,

670 (1889), and the framers of every Amendment are presumed to have said what

they meant and actually meant what they said. Connecticut Natl Bank v. Germain,

503 U.S. 249, 253-54 (1992) (Thomas, J.; collecting cases). And when the words

of a statute are unambiguous, judicial inquiry is complete. Id. at 254.

Whereas the typical Kennedy opinion is a profile in opacity, Obergefell, supra,

stands for the proposition that a spouse is a spouse is a spouse, regardless of that

persons gender. While there is a much cleaner and more originalist way to get to

Obergefell,12 it is precedent, binding on this Court. And for Petitioners to prevail,

12
The right to contract is an essential corollary of the right to own property, as you must be able to
acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with
default terms drafted by the State. Rights are retained by the individual unless ceded to the State;
all that a State can do is abridge rights and then, only in accordance with the authority granted to
it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to
show a compelling interest in preventing two persons from entering into that marriage contract.
As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has
no colorable authority to prevent them from doing so. This must be so as long as ours is a consti-
tutional Republic with limited government powers. I express no opinion on the ultimate wisdom
of same-sex marriage, pointing out only that are stuck with the constitutions we have.
16
this Court must find a defensible distinction between a same-sex spouse and one

of opposite gender within Obergefells confines. Quite literally, a hundred lower

courts tried, Obergefell, slip op. at Exhibit A, and collectively, they failed miser-

ably. And with that foundation laid, one can address the objections on the table.

IV. ANALYSIS OF PERTINENT ISSUES

As passionate as it was competent, Justice Devines dissent betrays the essen-

tial bankruptcy of the Footnote Four approach. He complains that [w]ithout

substantial discussion or analysis, the court of appeals assumed that because the

United States Supreme Court declared couples of the same sex have a fundamental

right to marry, the Equal Protection Clause of the Fourteenth Amendment requires

cities to offer the same benefits to same-sex spouses of employees as to opposite-

sex spouses. Pidgeon v. Turner, No. 15-0688 (Tex. 2015) (Devine, J., dissenting

from denial of cert.) (slip op., at 1). But that is the point. The City of Houston is

not legally obliged to issue benefits to any spousebut when it makes that choice,

the Fourteenth Amendment limits its discretion. And as Justice Devine has ably

illustrated, this Court can get to both answers without straining. If you define the

parties interest in terms of equality of treatment, the Court of Appeals is correct:

the answer is so obvious that it doesnt require an in-depth analysis. The Supreme

Court assumed that States would not indulge in discrimination based upon sexual

17
orientation, id. at 6-7, ostensibly reasoning that a spouse is a spouse is a spouse.

But when you re-define the interest as being one in spousal benefits, that right is

no longer fundamental, and even obviously-discriminatory laws need only have

a rational relation to some legitimate end. Romer v. Evans, 517 U.S. 620, 631

(1996). As rational is in the eyes of the tribunal, this leads to the licentious form

of judicial discretion abjured in Caldwell, supra.13

By contrast, the Petitioners arguments are facile. That the federal Constitution

does not mention a right has not stopped the Supreme Court from finding the right

to attend parochial school, Pierce v. Society of Sisters, 268 U.S. 510 (1925), travel,

Shapiro v. Virginia, 394 U.S. 618 (1969), marry, Loving v. Virginia, supra, or buy

contraceptives, Griswold, supra., nor should it. Rights are never diminished by

the Framers silence, and as we have seen, this was by design. And as no court has

ever come within light-years of finding that anyone has a right not to be offended,

the pastors umbrage at the mere existence of those icky gays is his problem. De

minimus non curat lex.

13
The most baroque example of a court trying to force Footnote Four to work is in Griswold v.
Connecticut, where Justice Douglas asserted that "specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees." 381 U.S. 479, 484 (1965). A more
abstruse rule of law could scarcely be imagined. It forced the Court to postulate an amorphous
right to "privacy" in Roe v. Wade, 410 U.S. 113, 152-53 (1973), impossible to credibly define.
Stare decisis is more of a corset than a straightjacket; if a rule "def[ies] practical workability,"
Planned Parenthood, 505 U.S. at 854, it is not binding on this Court.
18
CONCLUSION

At the end of the day, this case IS all about politics. Governor Abbott is a law-

yer who knows that the Fourteenth Amendment has effectively overruled Barron v.

Baltimore, 32 U.S. 243 (1833), and a craven politician who understands that Texas

voters have a homophobic streak. Politically speaking, letting this case go was not

an option.

While Justice Scalia merely went through Texas on his way to Hell (appropriate

apology to Davy Crockett!), he was not shy about indulging in the same outcome-

based jurisprudence14 he angrily decried when a vote didnt go his way. This Court

will almost certainly follow his odious example but at least, it has been told why it

probably shouldnt.

Respectfully submitted this 3rd day of February, 2017,

________________________________
Kenneth L. Smith, in propria persona
23636 Genesee Village Rd.
Golden, CO 80401-7044
e-mail: 19ranger57@earthlink.net
Telephone: (303) 526-5451

14
Florid examples include Alden v. Maine, 527 U.S. 706 (1999) (sovereign immunity unknown
to the Framers, per none other than Antonin ScaliaAntonin Scalia, Historical Anomalies in
Administrative Law, Y.B. Supreme Court Hist. Socy. 103, 104 (1985)but that didnt stop Jus-
tice Scalia from finding it), and Brusewitz v. Wyeth, 562 U.S. 223 (2011) (Roberts Court took a
black magic marker to thirteen words in the statute). Cf., King v. Burwell, 135 S.Ct. 2480 (2015)
(the infamous jiggery-pokery case), and of course, his epic meltdown in Obergefell, supra. (he
objected to being ruled, but sure didnt mind when he was doing the ruling).
19
CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2017, I served a copy of this document


upon all the parties by depositing it via certified U.S. mail and e-mail:

Jared R. Woodfill
State Bar No. 00788715
Woodfill Law Firm, P.C.
River Oaks Green
3131 Eastside, Suite 450
Houston, Texas 77098
(713) 751-3080
jwoodfill@woodfilllaw.com

Jonathan M. Saenz
Texas Values
State Bar No. 24041845
900 Congress Avenue, Suite 220
Austin, Texas 78701
jsaenz@txvalues.org,

Counsel for Petitioners

Judith L. Ramsey
Chief, General Litigation Section
Texas Bar No. 16519550
judith.ramsey@houstontx.gov

John B. Wallace
Senior Assistant City Attorney
Texas Bar No. 20769750
john.wallace@houstontx.gov

Kathleen Hopkins Alsina


Texas Bar No. 09977050
kate.alsina@houstontx.gov

20
Darah Eckert
Texas Bar No. 24007141
darah.eckert@houstontx.gov

David L. Red
Texas Bar No. 16656900
david.red@houstontx.gov

City of Houston Legal Department


900 Bagby, 4th Floor
Houston, Texas 77002
(832) 393-6491,

Counsel for Respondents

__________________________
Kenneth L. Smith

CERTIFICATE OF COMPLIANCE

I hereby certify that this document contains 3,906 words,15 excluding the por-
tions described in Texas Rule of Appellate Procedure 9.4(i)(1).

15
Twenty words were added to the count to account for the Willett tweet.
21