Gay marriage? Love loses.
Jeffrey Murphy | Thursday, November 15, 2018
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” – the late-Justice Scalia, in dissent
June 26, 2015 should have been one of the greatest days in American history (right behind November 8, 2016). For literally thousands of years, same-sex couples have been denied the opportunity to join in the institution of marriage. Not until the Netherlands in 2000 did any country in the history of human civilization permit same-sex marriage. Though I am not a wishy-washy person, it genuinely breaks my heart to think of all the love that has been stomped out across the world due to restrictions against same-sex relationships. Thus, as a matter of policy, I supported state legislation legalizing same-sex marriage (and while it is not the topic of this column, I would be happy to make that argument). Though it was low on my list of objectives to achieve (still waiting for the wall I was promised!), I was hell-bent on convincing my fellow Republicans to support bills that would permit same-sex couples to marry. Though the issue was understandably contentious, supporters of same-sex marriage were making progress in convincing their fellow American citizens to support the legislation. In fact, by the time the case in question — Obergefell v. Hodges — was decided, 11 states and the District of Columbia had passed legislation permitting same-sex marriage. That all ended on June 26, 2015. In the middle of a robust demonstration of the democratic process, five unelected lawyers stepped in to make the decision for us. America was robbed of her chance to pursue true equality, and far more than just the LGBTQ+ community will suffer for it. A day that should have been filled with joy and triumph is now clouded with an ominous foreshadowing.
It is always very unnerving (and inevitably disappointing) when the Supreme Court goes searching for a new right they are convinced is buried somewhere deep within the constitution. As the left has come to realize, if you cannot convince your fellow Americans to agree with your policy proposals, run to the federal judiciary and have them shove it down their throats. Want a right to an abortion? Dispatch Czar Brennan! Want to prohibit states from outlawing sexual activities you think are permissible? Send Supreme Leader Ginsburg! If the runaway justices deem it important enough, they will find a way to bend and contort the constitution until aligns with their personal desires. Such was the case in Obergefell v. Hodges.
Empress Ginsburg’s favorite place to search for new rights hidden in the constitution is the Fourteenth Amendment. The open-textured language of the Due Process Clause and the Equal Protection Clause leave much room for Almighty Ginsburg’s imagination (and she lets it roam free!). It is amazing what she and her fellow judicial activists have been able to find within those two brief clauses. Of course, no one ever voted to ratify a constitutional amendment that would mandate the permittance of same-sex marriage. As Justice Scalia wrote in his dissenting opinion, “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision — such as ‘due process of law’ or ‘equal protection of the laws’ — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.” The notion that the Fourteenth Amendment, a reconstruction amendment ratified following the Civil War for (among other things) the purpose of conferring equality upon freed slaves (which is a sore spot for Democrats to this day), requires states to issue marriage licenses to same-sex couples could only be cooked up in the chambers of a Supreme Court justice incapable of restraining his or her own policy preferences. The chief justice concurs with Justice Scalia’s remarks, stating, “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” Of course, the majority in this case believes the meaning of the Constitution evolves from term-to-term to meet our society’s ever-changing standards of decency and equality. Thus, they believe it is entirely within their role to determine what the law ought to mean today. If only there was a way citizens themselves could decide what those changes should be … if only we had some type of legislative process that was genuinely representative of our nation’s current values. Oh well, how dangerous could it be to let five people unilaterally make these decisions!
If the Supreme Court is not bound by the original public understanding of the Constitution at the time its respective provisions were ratified, it has virtually unlimited power. Justice Alito summarized this point in his dissent, writing, “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.” The chief justice echoed Justice Alito’s warning, writing, “The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”
The only reason supporters of same-sex marriage celebrate the decision in Obergefell is because they like the outcome. They are willing to overlook the incidental implications of the decision as long as they get what they want. If, for the sake of achieving political goals, we encourage the Court to undermine something as fundamental as the agreed upon definition of marriage, nothing is out of reach of Commandant Ginsburg’s icy clutch. The very people who should be the watchdogs of government overreach — those that have the most to lose should one branch usurp the power of the others — have become the cheerleaders of autocracy. To quote Senator Amidala from Star Wars, “So this is how liberty dies … with thunderous applause.” Frodo, from the Lord of the Rings, shares Senator Amidala’s political sense. He was determined to destroy the One Ring, even though he knew there was an opportunity to use the Ring for good. Frodo was able to recognize the possibility — nay, the certainty — that the Ring would eventually fall into the wrong hands and be wielded against the very people Frodo had intended to help. No one can be trusted with the Ring. As a minority group, the queer community doubtless needs reminding of the consequences of centralizing power.
Love did not win on June 26, 2015. Tyranny did. I hope to God the tyrant that replaces Supreme Leader Ginsburg shares her disposition towards the LGBTQ+ community. If he or she does not, the queer community will have tied the very noose with which they will be hanged.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.” – Chief Justice John Roberts
The views expressed in this column are those of the author and not necessarily those of The Observer.