Matt Walsh Freaks Out Over Supreme Court Decision He Hasn’t Read (Or Didn’t Understand)

by

JC Schildbach, LMHC

It’s more than a bit comical that Matt Walsh accuses Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges (the same-sex marriage case) of reading “like a lengthy Facebook post written by a 17-year-old” given that Walsh, utilizing the ‘you’re-not-the-boss-of-me’-style language of 6-year-olds, titled his own angry rant about the decision “Gay Marriage Still Doesn’t Exist No Matter What the Supreme Court Says.”

Walsh really should have added two or three exclamation points and at least one angry emoji to that title.

Walsh claims, repeatedly, that Kennedy and the other majority justices simply made up the right to marry for, well, adults who Walsh thinks are gross and icky. He claims that there is no legal precedent for such a decision, and that the majority opinion “barely attempts to offer anything resembling a constitutional defense or a coherent thought.”

Matt Walsh on his porch--Why bother with an actual analysis of a Supreme Court decision my audience will never read anyway?

Matt Walsh on his porch–Why bother with an actual analysis of a Supreme Court decision my audience will never read anyway?

I’m guessing Walsh didn’t actually read the legal arguments offered in the majority opinion. Barring that, one can only assume that Walsh was so consumed with rage over all those icky and gross people being allowed to marry that he was incapable of comprehending what the opinion said—or that he’s just too stupid and childish to understand the “constitutional defense” that is offered, and offered in great detail, with multiple citations of precedent cases.

After all, Walsh does not actually link to the decision, so that his readers would be able to check the validity of his arguments. Instead, he links to another article on The Blaze (which does link to the Court opinion), and to stories on CBS News, NBC News and even, yes, to MSNBC, as evidence that the court “upended the institution of marriage, dismantled the rule of law, undermined the will of the people, and canceled out the legislative process entirely.”

Let’s take a brief pause so that you can check out the Majority Opinion. It is rather lengthy, but, in case you don’t want to read the whole thing, like many Court opinions, there is a “syllabus” at the outset (the first five pages in this case) that explains the overall issues, legal precedent, and basis for the decision.

Majority Opinion

Had Walsh read even the syllabus (and been able to comprehend it) he would have realized that the court argued:

  • The “institution of marriage” has had an evolving definition over time, which basically means his whole argument about what marriage “really” means is only so much, to borrow a phrase from Justice Scalia’s recent Obamacare dissent, jiggery pokery.
  • The rule of law was not “dismantled” in this case, but worked exactly like it was supposed to—utilizing legal precedent, and examining the specific impacts of particular laws and legal questions, to arrive at a decision about how laws can be equally applied to all adult citizens of the United States. That’s kind of the job of the Supreme Court, Matt.
  • ‘Undermining the will of the people’ is, perhaps, a bit more complicated. Yes, there are states where people voted to keep same-sex couples from marrying, just like there are states where people voted to allow same-sex marriage. But, to borrow a bit of bumper-sticker-style wisdom, that’s the great thing about rights: we don’t get to vote on who is allowed to have them and who isn’t. Everybody gets them.
  • As for “cancelling out the legislative process”—laws are subject to judicial review. That’s how that whole “balance of powers” thing is supposed to work. Funny thing is that laws can be “cancelled out” if it turns out that they’re illegal.

But Walsh tries to make the argument that the same-sex marriage decision is evidence that liberals have taken over everything throughout all of America, and are doing all they can to attack Christians and make the once-great United States of America into some gross, icky thing where Matt Walsh has to put up with gross, icky people, just because liberals want to make people like Matt Walsh all mad and uncomfortable and stuff.  Walsh seems to forget that there are plenty of Supreme Court case decisions that liberals haven’t been particularly happy about, but when you have a persecution complex, you have to ignore all evidence that doesn’t allow you to play the victim (especially as you accuse others of playing the victim).

There are multiple meltdowns throughout Walsh’s piece, including this string of ‘ideas’ that sound like an affirmation for people suffering a break from reality because of the Court decision: “There is no right to gay marriage. There is no gay marriage. It’s not real. It’s not possible. It’s make-believe. It means nothing.”

It almost makes you feel sympathetic enough that you wish one of Matt’s super-heterosexual friends would grab him by the shoulders, slap him, and tell him to get a grip.

Walsh continues on with a segment that he subtitles “What is a Right?” He makes the claim that, to liberals, “a right is some sort of cosmic force that guarantees him access to whatever he happens to want,” going on to enlighten everyone that “Constitutional rights” and “human rights” are, instead, those rights bestowed on us by our “Creator.” So, rights are not a “cosmic force,” but rather granted by our “Creator.” Good thing Walsh cleared that up. It all makes sense now.

But just a few follow up questions–does the Creator grant us rights based on what we want, or what we need, or is there some other criteria?  And does the creator only grant those rights to heterosexuals?  Or, maybe the heterosexuals get some of those rights to themselves, but not all of the rights only to themselves?

Also included is a segment subtitled “What is Homosexuality” in which Walsh argues that anything other than good, old, heterosexual, marriage-based boning is just a bunch of twisted urges that people can walk away from.  Or, in other words, if you think you might be something other than completely heterosexual, you are confused and looking to justify your desire to engage in sinful behavior.

Okay, Matt, we all get that you’re confused by the idea that there are people who think sex might involve more than just attempts to make babies, and that gender identity might involve more than the binary boys vs. girls. But your confusion doesn’t mean that you are an expert on human sexuality. In fact, your confusion pretty much means that you’re the opposite of an expert on human sexuality—some might even say that it means you’re completely ignorant and should probably not say anything else on this topic–at all–ever.

In Walsh’s view, there are greater goods to be achieved by marriage, such as stability in society.  But, he asserts that somehow that stability is undermined unless marriage exists only so that families can be created–and created by fertile, heterosexual couples. Walsh does not feel the need to fully explain himself here, as we all know that families are only and always created by heterosexuals marrying and having children—no exceptions. We also know that having children is the only reason people get married, and that anyone who is not heterosexual does not have/belong in a family.

Walsh says that even though the Supreme Court changed the definition of marriage in this case, there are still limits on marriage that the court is willing to enforce, and wonders why that is. Of course, most of the examples of marriage limitations that Walsh cites are pointless—a human and anything non-human, three or more humans, multiple humans along with other non-humans, an adult and a child, etc. These arguments are meaningless, because the Court is not asserting that marriage involves anything other than two adults willingly entering into a legal relationship, which is the question the Court was charged with answering.

Those situations Walsh hightlights where there is potential for further clarification of legal definition—including the example of a brother and sister wanting to get married, or multiple people wanting to get married in a polygamous union—are not involved in the current decision. Arguably, it is possible that cases involving such relationships could come up in the future. But they are not at question now, and the same-sex marriage decision does nothing to allow such unions. For now, the decision allows each adult to enter into a (non-incestuous) consensual marital relationship with one other adult—which means it is giving all adults the same, basic right, instead of granting it only to the people Walsh thinks are not gross and icky.

Ignoring the entire history of marriage, which has involved a range of issues much more than simple love and procreation between two God-fearing Christians, Walsh makes the absurd claim that marriage is only and always a union condoned by God and God alone, having nothing to do with the state. He, for example, ignores the fact that marriage predates even the Jewish religion, not to mention the Christian religion, and that much of it involved such events as arranged marriages that were tied to issues of property and inheritance, including those property exchanges where the wives were considered part of the property. I’m guessing Walsh is okay with at least some of the changes in the definition of marriage that have occurred over time; although if that is the case, it would essentially undermine his own argument of an eternal, monolithic definition of marriage.

Walsh further asserts that allowing only heterosexual marriage does nothing to harm gay people, and that, “Before the legalization of gay marriage, the government wasn’t ‘involved’ in marriage, as so many have claimed.” This is just patently stupid. One would have to be completely ignorant of what the law says about property rights, transfer of property rights, legal say over medical decisions, legal say over custody rights of children, and numerous other legal rights, responsibilities, and benefits that come with marriage to make such an argument.

And even if Walsh was ignorant of the myriad rights and legal benefits that marriage confers, he would have understood at least some of those issues if he had bothered to actually read the Majority Opinion, or even the syllabus of the Majority Opinion, wherein several specific situations of the petitioners are made clear, involving (gay) adults and their families being deprived of rights because they were not legally allowed to be married, or because one state recognized that right, but another did not.

It’s irresponsible enough to assert that something represents an illegal power grab by one’s political opponents simply because one disagrees with that thing. It’s even worse to assert that something lacks legal standing when one has not bothered to read and understand that thing. And it’s worse, still, to assert that something lacks legal standing when one has read and understood that thing, and simply decided one would rather argue to the contrary for one’s audience, knowing full well that said audience will not bother to read and understand the original thing and are simply looking for someone to lay out an argument that supports their own anger and lack of understanding.

In this case, giving Walsh the benefit of the doubt would mean one of a few very distasteful options: that he either didn’t read the Court opinion, or that he didn’t understand it. Otherwise, he is deliberately lying to his readers.

In the end, Walsh’s argument comes down to his view of what is right, based only on his beliefs. But rather than asserting that it is his view, he asserts that what he views as right is the absolute truth, and that it is backed up by God Almighty as it has always been and always will be.

Walsh apparently doesn’t recognize that even God changes God’s mind—I mean, at least if you believe in that whole law/gospel, Old Testament/New Testament business.

Still, I will grant that Walsh is right about one thing.

There is no such thing as gay marriage.

It’s just marriage now.

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Elonis and the ‘Art’ of the Online Threat

by

JC Schildbach, LMHC

Last week, the U.S. Supreme Court decided that making threats on social media isn’t always making threats on social media.

Call it the jk standard.

Or don’t call it that. That’s not really what the Supreme Court decided.

In this particular case, (Elonis v. United States, 13-983 U.S. ___ (2015)) a rather sad and unpleasant man named Anthony Douglas Elonis took to calling himself “Tone Dougie” on Facebook, where he wrote and posted “lyrics” and “comedy routines” involving threats to his ex-wife, former co-workers, an FBI agent, and elementary school children. But the Supreme Court really only decided whether the jury that convicted Elonis of criminal offenses was given the appropriate instructions for deciding that conviction.

So, the Supreme Court was not looking at whether Elonis legitimately acted in a criminal fashion, but whether the jury was instructed to apply the wrong standard in his case. In the court that convicted Elonis, the jury was asked to apply the “reasonable person” standard that is used in civil cases involving threats, when they should have been asked to apply the “criminal intent” standard that is used in criminal cases.

In other words, it’s as if the jury was instructed to decide whether Elonis should be forced to pay a financial penalty to the people he antagonized, and the jury said ‘yes,’ so Elonis got thrown in prison. The question the jury was asked did not match up with the penalty Elonis received—legally anyway.

So, while “reasonable persons” might recognize that Elonis was deliberately threatening his wife and numerous other people, a criminal conviction generally requires a standard of “criminal intent”—or proof that it was Elonis’ intent to threaten his wife, and the others.

The jury should have been instructed to decide whether Mr. Elonis had intended for his posts to be viewed as threats by those people who were the targets of those threats. Elonis argued that his posts were just “art” and a “therapeutic” way of working through his pain after his wife took their children and left him. Elonis and his lawyers pointed to Eminem as an artist who has built much of his career on songs threatening violence against his ex, and to the other posts on Elonis’ facebook feed where he asserted he was engaging in protected free speech, joking, or that otherwise had nothing to do with the threats, as proof that Elonis was not deliberately threatening anybody.  That is, Elonis argued that he had artistic and self-soothing intent, not intent to threaten anybody. And, although reasonable people might call bullshit on Mr. Elonis’ argument, reasonable people don’t count here.

There is ample evidence to suggest that Mr. Elonis did, in fact, intend for his targets to feel threatened. For instance, one of his jaunty little poems/rap songs questioned whether his wife’s protection order–granted because a judge saw that there was legitimate reason to keep Mr. Elonis away from his wife and their children–would, when folded up and stuffed in her pocket, be “thick enough to stop a bullet.” That same “poem” included claims that Elonis stood to earn plenty of money in a “settlement” against the police, and claims to own explosives that could be used against state police and sheriffs.

A little background from the court opinion, highlighting Elonis' 'art.'

A little background from the court opinion, highlighting Elonis’ ‘art.’

Another of Elonis’ quirky little fantasies involved slitting the throat of the (female) FBI agent who was sent to his house to question him about a Facebook post wherein Mr. Elonis suggested he was going to gain fame by shooting up an elementary school.

Elonis also posted some “art” suggesting that he could easily sneak into the Halloween events at the amusement park he was fired from, in order to engage in violence.

Such fun. So expressive.

Grammar fans are also upset by Elonis’ use of the botched phrase, “if worse comes to worse,” in his poem about his wife’s protection order.

There were other posts involving insults and threats against his wife, calling her a slut and a whore, indicating he should have smothered her with a pillow, posting floor plans of the house where she was staying, and describing how, from a nearby cornfield, he would have a clear shot in through some glass doors at said house.

And beyond just the words that Elonis posted, there were plenty of other indications that his words were meant as more than just artistic expressions.

For instance, Elonis called his sister-in-law to make sure his wife had seen his posts on Facebook. And, prior to threatening his co-workers online, he was fired, in part, because he had begun to undress in front of a female coworker after cornering her in her office one night.

But—and this is a big but—the Supreme Court wasn’t deciding whether Elonis’ actions were A-OK, or whether he was engaging in acts of protected speech. In fact, the Court declined to address the issues of free speech, since the main question was about whether Elonis had been wrongly convicted.

Simply stated, the Court decided that, because Elonis was convicted on criminal charges by a jury using the standards for a civil decision, Elonis had been wrongly convicted of a criminal offense.

This is not to say that the jury would not or should not have convicted Elonis had the jury been given the appropriate instructions–to decide Elonis’ (criminal) guilt based on whether he had criminal intent to threaten his wife and other parties—rather than deciding whether a reasonable person would have recognized Elonis’ words and actions as threatening.

"Ammo Can Kiss."  Media: Selfie.  Artist: Tone Dougie

“Ammo Can Kiss.” Media: Selfie. Artist: Tone Dougie

So take heart, reasonable people. The Elonis case does not mean that threats are now a protected form of speech. I would guess that a jury would likely see Elonis’ behavior as meeting the criminal standard of having legitimate intent to threaten—given the specificity of the targets and actions laid out in his ‘rap lyrics.’ That the targets of Elonis’ behavior took his words as legitimate threats, and lived in fear of what he might do, and that his “art” provoked the necessity for a visit and monitoring by the FBI, suggests that Elonis was not somebody who was just a misunderstood artist.

Yet, that’s a question for another day. Or, put a different way, the Supreme Court makes decisions based on the questions it gets, not the questions the public wants answered. And the only question the Court really decided here was whether the jury got the right instructions to make the decision they were tasked with making in the Elonis case.

To be sure, the Supreme Court’s decision leads to a shift in how cases like Elonis’ will have to be prosecuted. Plenty of lower courts have allowed criminal convictions using the same “reasonable person” standard that was used in the Elonis case. And the “criminal intent” standard can be much harder to prove.

There is much to be said about how to successfully address online threats, and questions of how our slow-moving legal system can adequately respond to rapidly- changing technology and online environments. For practical advice on those issues, Crash Override, started by Gamergate target Zoe Quinn, is an excellent resource

And in related entertainment news, I’m guessing Tone Dougie’s album drops around the 12th of Never.