When the Echo Dies: Marriage Is Unconstitutional: America at Risk

By Dean C. Waldt

In June 2015, the Supreme Court declared that marriage violates the United States Constitution. The federal court marriage decisions, culminating in the 2015 Supreme Court decision, are a symptom of a potentially fatal condition impacting American society. The foundation of the American experiment in self-government is a common core of objective foundational truths. These are not sectarian or doctrinal truths. Rather, they are the echo of the Judeo-Christian principles that have been the basic foundation stones of Western civilization. In When the Echo Dies, recent federal court cases overturning State laws and State constitutional amendments on civil marriage and the Supreme Court cases finding traditional civil marriage to be an unconstitutional institution are examined in detail to determine whether the premises used by the federal courts are a reflection or a rejection of the foundational echo that gave birth to America. The examination of these decisions leads to the inevitable conclusion that much of the federal judiciary and the majority of the Supreme Court has either lost the ability to hear the foundational echo or actively reject it. Whether from active choice or passive disability, the end result is a form of judicial tyranny, as the federal courts usurp the American democratic process.

But it is not too late. We must rediscover and reengage the echo to preserve the American experiment. This involves many voices in a pluralistic society. We must reject the gag order of political correctness and have the conversation. Forced conformity, moral nihilism, utopian social planning, and the raw use of governmental power to build a better world has never yielded a good result. Only a people who together hear the echo of foundational objective truths can self-govern. We must become that people once again. America is at risk. When the echo dies, so does America.

• Language: English
• Publisher: Xlibris US
• Release date: Jan 5, 2017
• ISBN: 9781524573133

Dean C. Waldt

Dean C Waldt is a partner with a large national law firm. He has represented sophisticated business clients, as well as state and local governments, in complex litigation matters in federal courts across the United States for over thirty years. In addition to the degree of Juris Doctor cum laude from Villanova University School of Law, he holds a Master of Divinity degree from Fuller Theological Seminary and a B.A. summa cum laude in Philosophy and Religion from Grove City College. Dean is a frequent lecturer on legal topics as well as an active commercial litigator. He maintains a national practice and is professionally based in Phoenix, Arizona . He is an avid sailor, hiker and outdoorsman. He resides in Florida with his wife, Linda, who also loves to sail. Dean and Linda recently celebrated their 40th wedding anniversary by renewing their marriage vows in Cana, during a Catholic pilgrimage to Israel.

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Copyright © 2017 by Dean Waldt.

Library of Congress Control Number:  2016921504

ISBN:    Hardcover    978-1-5245-7315-7

          Softcover    978-1-5245-7314-0

          eBook    978-1-5245-7313-3

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Contents

Preface

Chapter 1:  The Echo

Chapter 2:  What the Echo Is and What It Is Not

Chapter 3:  Why the Echo Is Essential to America

Chapter 4:  The Descent of the Echo and the Ascent of the Judges

Chapter 5:  Ground Rules for the Conversation

Chapter 6:  Gaining Distance from the Echo

Liberty As the Right to Define Yourself and the Universe

Chapter 7:  Case Study

Silencing the Echo in the Golden State

Chapter 8:  Case Study

The Echo Under Assault in the Cradle of Liberty

An Exercise in Judicial Tyranny

Chapter 9:  The Law of the Land

The Supreme Case Study in the Dying Echo

Part One: The Constitution Requires Equal Access to State-Dispensed Human Dignity

Chapter 10:  The Law of the Land

The Supreme Case Study in the Dying Echo

Part Two: Marriage Violates the United States Constitution

Chapter 11:  The Dissent: Voices of the Echo

Chapter 12:  A Hypothetical

The Obergefell Decision with the Echo

Chapter 13:  The Echo As the Bulwark between Liberty and Tyranny

Chapter 14:  When the Echo Dies

Chapter 15:  Justice Is Across the Street

Chapter 16:  Listening for the Echo Again

Preface

Can we talk?

—Joan Rivers

In her heyday, comedienne Joan Rivers often asked this familiar question at the beginning of her onstage routines. She would then launch into comedic observations about everyday life. She would continue to riff, poking fun at common human foibles or behaviors to which everyone in the audience could relate. Through her comedy, she would cause people to look at themselves in a fresh and critical way and then laugh at themselves. At the end of her routine, her audience would have to admit that they do the same funny, silly, and unthinking things that Ms. Rivers highlighted in her conversation with them. It is our automatic and uncritical behaviors that provide a basis for a good comedy routine simply because we all do ridiculous things but seldom think about them.

One danger sign in contemporary American society is the growth of the unofficial list of topics that are out-of-bounds for comedians. Even the most edgy performers will think twice before making a joke about two Muslim guys who walk into a bar or a gay couple shopping for a wedding cake in Alabama. In other words, there is a growing list of the things we cannot talk about or even mention. Put simply, if Joan Rivers were doing stand-up today, she would have less to talk about, or less that she would be allowed to talk about.

The question is, who creates the list of taboo topics? These days, it seems that the advocates of various higher causes are in charge of the list. They often use the off-limits list as a tool and a weapon. These culture warriors understand the strategic and tactical advantage of using such a technique. They know that there is no need to devote time and trouble to winning a debate in an open exchange of competing ideas when a victory can be achieved by shutting down the debate before it even begins.

Recent examples of the deployment of this weapon abound. There used to be a public debate about the extent and impact of human-generated global warming. As a matter of science, one would think that the proper approach to this question would be to employ the scientific method of hypothesizing, examining the data, and drawing a conclusion from that data. It is important to the entire planetary population to get it right. However, some who seek a political or economic benefit from a particular conclusion on this topic have realized the benefit of taking a shortcut to reach their desired destination. They discovered that it is faster and more efficient to simply announce the conclusion and then shut down discussion. Over recent years, we have seen the results of their efforts. We are now told, as a matter of fact, that the science on climate change is settled, and we can stop further scientific inquiry. Anyone who wants to engage in continued scientific research about global warming is labeled as a flat-earth science denier. This has ended the discussion on this topic. If the primary goal was to close out the debate, that goal has been accomplished by putting the topic of climate change on the list.

Here is another important topic that has made the list. Did the forced racial desegregation of public schools actually help the children who were part of this social experiment? Anyone who even dares to ask this question, in order to determine whether we are doing our kids a service or a disservice, is preemptively silenced as a racist. As long as anyone who even dares to ask the question and wants to examine the data is preemptively silenced, this question will remain unexamined and the welfare of our most vulnerable students may be jeopardized. If only a racist will question this holy grail of racial politics, then the odds are favorable that the question will never be asked or answered. The kids will just have to live with the consequences.

These illustrations remind us that while the list is unofficial, it is very real. It is a simple fact of modern life that there are questions that we are told are off-limits. Now for a fair warning to readers. This book asks questions that are on the list. Those too sensitive to consider a point of view with which they might disagree should stop reading now. This book will take you outside your safe space. It will ask questions that our culture tells us cannot be asked.

Before reading on, ask yourself if you are up to the task. Are you prepared to actually think about issues that may make you or others feel uncomfortable? Are you secure enough in your convictions to believe that your conclusions can be explained and defended in a logical, dispassionate and open discussion?

If you answered in the affirmative, then I hope you will read on. You do not need to agree with the conclusions in this book. I simply ask that you be willing to think, consider, and discuss. If you disagree, you should be able to articulate the basis for your disagreement in terms other than a conclusory dismissal. If you do find yourself agreeing with some of the conclusions reached below, I hope that this book will encourage you to be more willing to halt your retreat from the public forum of debate and reengage on the battlefield of ideas.

The questions to be discussed in this book are as follows:

•  Is the American experiment in self-government necessarily based on a foundational assumption that the American people share a core of common moral and ethical standards?

•  If so, are these standards imposed by government, or are they inherent in the people committed to the American enterprise?

•  Is the common ethical and moral standard founded upon a Judeo-Christian worldview?

•  What is the current status of that foundational standard?

•  Can the American experiment survive and succeed if that foundational standard is either passively abandoned or actively undermined?

•  If the foundation is in jeopardy, how can it be preserved?

So can we talk? If so, let’s begin the conversation.

Chapter One

The Echo

There is a true law, a right reason, conformable to nature, universal unchangeable, eternal, whose commands urge us to duty and whose prohibitions restrain us from evil.

—Marcus Tullius Cicero

And the three men I admire most

The Father, Son, and the Holy Ghost

They caught the last train for the coast

The day the music died

—Don McLean

Find someone who can remember where they were when President Kennedy was assassinated, or when Neil Armstrong walked on the moon, or when Richard Nixon resigned from office. Ask that person if they believe American culture has changed dramatically in their lifetime. I guarantee they will answer in the affirmative.

Some of this is the inevitable result of passing the cultural torch from one generation to the next. My parents were firmly convinced that kids who listened to the Beatles would become hippies, smoke dope, and fall into ruin. My grandmother refused to believe that men had walked on the moon. For her, the Lindbergh trip was pushing the envelope. I have to laugh at myself when my grown child tries to get me to use Facebook, download a new app for my iPhone, or go paperless with my monthly bills. I have made some progress, but I did not go quietly into the brave new world of technological changes.

However, somehow, today it seems like more is happening to American culture. It is not just styles, fads, or trends that are changing. It is not just politics, economics, or social habits that are developing to meet the reality of an ever-changing technological society in which the world is a smaller place with much less elbow room. Something more is going on in American culture and in our shared social and political lives.

This time, we are not simply rearranging the furniture in the living room. This time, we are not building an addition to the house. This time, we are digging the soil out from under the house’s foundation.

If this perception is accurate, then it would be prudent to consider whether the American house will survive this excavation project. If we believe the answer is no, then it would be wise to consider whether we, as individuals and as collective groups of citizens, can do anything to keep the house intact. After all, we learned in school that this is the United States of America. We all own the deed to the house. If the nation is in danger, no one will save it except us.

America is a grand experiment in individual liberty and self-government. America seems different from the rest of the world because it is different. I have experienced the difference when traveling to countries with different political systems and cultural histories. Some cultures are rooted in the Old World thinking of European cultures. Others are still dealing with the vestiges of failed political experiments like communism. Still others are only recently emerging into an age of modernity.

The more I travel, the more I appreciate that most citizens of planet Earth cannot conceive of the freedoms we have in America. These are freedoms which we often take for granted. For the most part, we can determine where we will live, what kind of education we will obtain, whom we will marry, how many children we will bear and raise, what we will do for a living, or simply where we will go on our day off. The Western European cultures from which America descended approximate this freedom. (By the way, it is good to remember that they can do so because America fought two world wars and a cold war to make that possible.) However, even in the most developed countries of Western Europe, an increased level of governmental involvement in the life of the individual is a fog that hangs in the air and reminds us that the quality of American freedom is unique.

Here is an example. Recently, a lawyer friend of mine had a client opening a business in a Western European country. His client was told by the national authorities that all the employees who would be coming over from America needed to produce a good-standing certificate issued by the American government. The client had no idea what this type of certificate was, and neither did my friend. He called me to talk about it. After a moment of discussion, the answer dawned on us. The good folks in Europe were making a routine request from their point of view. In their experience, it is simply a given that the government has a file on each person. Upon request, some government employee can look you up in the database, see that you are not a felon or a tax cheat or an enemy of the state, and then issue you an official certificate that says so. The European bureaucrat whom my friend was dealing with did not understand that in America, absent special circumstances (like having a security clearance), there is no file of the type he assumes to exist. Americans are free individuals, and unless there is a good reason, the government does not (or at least should not) keep a file on them.

Whenever I return to the United States from a trip overseas and the immigration clerk stamps my passport, he or she always says, Welcome home. This must be part of the standard training for customs employees who work at airports. I hope that it is. I always love hearing that greeting. I actually think about it and look forward to it during the flight home. I am thankful for it. I walk out of the airport returning home from a different world, knowing that, having returned to America, I will not be watched, monitored, or policed, unless I transgress the law. It is good to be home. But that feeling of the safety and security of home is not automatic or eternal.

If I am sitting in my living room, feeling safe and secure—that feeling will be shattered if an earthquake strikes. My feeling of safety and security is wholly dependent on the integrity of the house in which I am sitting, not the other way around. If the foundation of my house starts to crumble beneath me, all the good feelings in the world will not prevent its collapse.

What is the foundation of our American house? We need not go far for the answer. To the extent they are still in the history books used by public high school students, our founding documents answer that question.

The Declaration of Independence states the following as its foundational starting point:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The men who signed this document, at risk of their lives, did so with firm reliance on Divine Providence and so mutually pledged to each other our Lives, our Fortunes, and our Sacred Honor.

At its most basic level, this is the foundation upon which the American house is built. The construction materials are clearly described in the Declaration. The first of these materials is truth. Pontius Pilate once famously inquired, What is truth? This question still rings familiar in contemporary ears two thousand years later. What is the real truth? Is it your truth? My truth? Liberal truth? Conservative truth? American truth? Global truth? The Founders answered that question in the Declaration.

The Founders declared that real truth is self-evident truth. It is truth that they considered axiomatic. In other words, it is foundational truth. For this idea of foundational truth, or foundationalism, to make sense to us, a few things are required.

First, there must be such a thing as objective truth. Truth cannot be a matter of opinion. It cannot be determined by survey, by poll, or by vote. Some things are objectively true. Other things, most specifically those things that contradict what is objectively true, are objectively false. For example, the sun rises in the eastern sky and sets in the western sky. This is an objective truth everywhere on the planet because of the direction of the Earth’s rotation in relationship to the sun. You and I are not entitled to different opinions on this topic. You and I cannot have our own personal truth regarding the sunrise. No survey or poll will change the direction in which the planet spins on its axis. As the late senator Daniel Patrick Moynihan often said, You are entitled to your own opinion, but you are not entitled to your own facts. This may seem elementary and so obvious as to be a nonsensical topic of discussion. Unfortunately, it is not. I know this from personal experience.

Several years ago, I took a group of my best and brightest young legal associates to lunch at a local pub for a Friday-afternoon pint. I loved this pub, not only for its great selection of beers and ales, but also because between every few bar stools, there was always a wicker basket full of fresh hot popcorn (a personal weakness of mine).

This particular day, I decided on an exercise to test the influence of modern higher education on the foundational perspectives of these young professionals. All these young people attended prestigious universities and nationally ranked law schools and graduated at the top of their class. I gained everyone’s attention and ensured full participation in the exercise by announcing that I was footing the bar bill. I then pointed to a basket of popcorn on the bar and asked my young charges if it was true that here, before them, was a basket of hot, salty wonderfulness, which all but guaranteed the need for a second round of brew. They all answered in the affirmative. I pursued the issue further and asked if I was telling the truth when I stated that a popcorn basket was sitting on the bar. Again, affirmative nods all around.

Then I removed the basket and placed it out of sight behind the bar. I pointed to the empty space previously occupied by the basket. I then stated with conviction that in the now vacant space where the popcorn used to be, there was, in truth, a full basket of popcorn. I asked my young legal scholars whether I was speaking the truth. Only half said that I was not. The other half would not answer.

When I pressed the reluctant members of the group, one responded that she was uncertain how to answer because I might think that the basket was still there and, therefore, it might be there for me. Another asked for further clarification of the meaning of the word there.

Pressing the point, I asked if I would be telling a lie by swearing under oath that the empty place on the bar still held a basket of popcorn. At this point, even those that were previously willing to say that I was not speaking the truth bailed out on me. Not a single one of the young people present would call my statement a lie. Untrue perhaps. A misstatement, yes. But not a lie. When I inquired as to their reluctance, I was told that saying that the statement of a known false fact is a lie is considered to be an ad hominem attack on the speaker, so it is better to say that the speaker is simply mistaken or perhaps misspoke.

Does this sound familiar? Four highly educated young professionals had been trained by their educational background and life experience to instinctively reject the notion that some things are objectively true and, therefore, that the opposite propositions must be objectively false. The notion that the statement of a known falsehood could be called a lie was unthinkable and offensive.

My little experiment illustrates the point that the concept of objective truth is becoming not only an endangered species but also morally suspect as well. Our young people are being taught that claiming things to be objectively and absolutely true and false is morally wrong. This poses a huge problem for the integrity of the American house, since the Founders told us that the existence of objective truth is the first foundational basis of our liberty.

The Declaration tells us that the second foundational basis of liberty is the proposition that these objective truths are self-evident. These are the truths that were used to pour the foundation stones of the American house. They are axioms, truths about which men and women of clear thinking and sound reason will agree upon as a matter of simple fact. They are truths which people will use as a basis for their judgments and their actions.

The Declaration goes on to reference a short list of these core, self-evident truths. They include the equality of all people, the right to life, the right to liberty, the right to self-determination, the right to be governed by the consent of the governed rather than by the imposition of authoritarian governmental power, and the right to security in one’s person and property.

The Declaration says that the existence of these rights is not created by the government, any more than the almanac makes the sun rise in the eastern sky at 7:05 a.m. on May 12. Rather, the Declaration considers as self-evident the objective truth that these rights exist and that all citizens have them.

The reason the precepts in the Declaration are true is the same reason the sun will rise at the exact hour the almanac predicts. This is how the universe works: not by chance, but by design. There are astronomical constants that astute observers have calculated and recorded through the ages. The same types of constants also exist in the realm of moral truth, and they have been plotted and recorded throughout the ages. Tyranny and oppression are objectively bad. Liberty and freedom are objectively good. These are self-evident objective truths. They are foundational truths.

The third foundational basis of liberty found in the Declaration is an explanation of why the truths listed are both objective and self-evident. The reason is this. These truths emanate from a source higher than any person or government. These rights are neither the creation of any parliament nor the gift of any mortal sovereign to grateful subjects. Rather, these rights are an endowment given to all people from the Creator. In other words, they are God-given rights, which any legitimate government must recognize and which such government cannot rightly deny. They are inherent in the created order of things, as established by Divine Providence.

Objective truth, knowable and self-evident, rooted in the very nature of the created order. These three concepts of human liberty are the foundation stones of the American house.

While contained in our founding document, they predate the Declaration of Independence. They are as old as the Academy of Athens, the