Photo credit: Ted Eytan (CC-By-SA 2.0)
Photo credit: Ted Eytan (CC-By-SA 2.0)
Photo credit: Ted Eytan (CC-By-SA 2.0)

The Supreme Court of the United States ruled 5 to 4 in Obergefell v. Hodges in favor of same-sex marriage in effect deciding all state laws and constitutional amendments defining marriage are unconstitutional.  The majority opinion by the Court is in reality a blow against liberty, not for it as the majority claims.

Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan were in the majority.  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented.  Each Justice who dissented wrote their own opinion.

Kennedy writing the majority opinion wrote, “The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution‚ÄĒeven as confined to opposite-sex relations‚ÄĒhas evolved over time.”

So think about what he just said here. ¬†There is no foundational premise of marriage that can stand against society’s evolving idea of marriage. ¬†How can one honest say Kennedy did not leave the door open for polygamy?

Kennedy also wrote, “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.”

Read closely what he wrote here… “rights do not come from ancient sources alone.” ¬†Where else do they come from? ¬†They come from “a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

What a load of horse pucky our founders are rolling in their graves. ¬†Where do our rights come from? ¬†Do they come from our founders? ¬†No. ¬†Do they come from the Constitution? ¬†No. ¬†Do they come from the Supreme Court? ¬†Absolutely not. ¬†Do they come from our societies “better informed understanding of how constitutional imperatives define a liberty?” ¬†Hell no, that statement is so nonsensical it belongs in a comedy not a Supreme Court opinion.

Our inalienable rights are endowed on us by our Creator.  These truths are self-evident.  Courts, government, and our Constitution only protect the rights that God has given to us.

Kennedy, as expected, cited the 14th Amendment in his decision, “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‚Äôs guarantee of the equal protection of the laws. “

The 10th Amendment is overlooked, only the 14th Amendment matters and Justice Thomas gave a great rebuttal to that reasoning which I’ll bring up in a bit.

Kennedy in his opinion gave a nod to the religious liberty rights of those who disagree:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction 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 that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.

Look at what he says here…. they “may continue to advocate.” ¬†Thank you very much Justice Kennedy, but I don’t need your permission. ¬†That is a right I had and will continue to have even if he said the exact opposite. ¬†He also states that the First Amendment provides protection for those who “seek to teach.” ¬†So the First Amendment doesn’t protect those who seek to practice or those who seek to exercise their conscience?

We have a freedom of religion, not just a freedom of worship that impacts our living our lives, not just what is taught within the four walls of the church.

So Christian bakers, photographers, caterers, venue owners, etc. should not see any solace in this. ¬†If there is a constitutional right to marry and churches only enjoy protection in their teaching a reasonable person can infer that it won’t be long before activists will go after the Church. ¬†Especially when you consider the majority compared current marriage laws, defense of marriage acts and constitutional amendments with Jim Crow laws that denied African-Americans it is not hard to imagine where this is going to go. ¬†Justice Alito inferred this in his dissent:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Each dissenting justice offered their own opinion. ¬†Chief Justice Roberts affirmed that the Court is not the legislature (I wish he would have said the same in the King v. Burwell ruling, but I digress.). ¬†“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. The people who ratified the Constitution authorized courts to exercise ‚Äúneither force nor will but merely judgment,” Roberts wrote.

Roberts also noted that this decision shut down the democratic process we were engaged in before federal courts intervened:

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority‚Äôs approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens‚ÄĒthrough the democratic process‚ÄĒto adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Roberts noted that this decision had nothing to do with the Constitution.

The majority‚Äôs decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court‚Äôs precedent. The majority expressly disclaims judicial ‚Äúcaution‚ÄĚ and omits even a pretense of humility, openly relying on its desire to remake society according to its own ‚Äúnew insight‚ÄĚ into the ‚Äúnature of injustice.”

Justice Scalia called this decision a threat to American democracy.

Today‚Äôs decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact‚ÄĒ and the furthest extension one can even imagine‚ÄĒof the Court‚Äôs claimed power to create ‚Äúliberties‚ÄĚ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

Scalia pointed out Kennedy’s amazing reversal in his opinion when the Court overturned the Defense of Marriage Act.

It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today‚Äôs opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): ‚Äú[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.‚ÄĚ

What changed?  Nothing.

Justice Thomas addressed the Due Process argument.

The Court‚Äôs decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a ‚Äúliberty‚ÄĚ that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea‚ÄĒcaptured in our Declaration of Independence‚ÄĒthat human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

The majority‚Äôs decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing ‚Äúdue process‚ÄĚ before a person is deprived of his ‚Äúlife, liberty, or property.‚ÄĚ I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights‚Ķ. By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.

Justice Alito added in his dissent that the Court in the past had provided a check on their use of Due Process that this opinion ignored.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that ‚Äúliberty‚ÄĚ under the Due Process Clause should be understood to protect only those rights that are ‚Äėdeeply rooted in this Nation‚Äôs history and tradition.‚Äô

The way forward is murky, and if it wasn’t before the issue of the judiciary should be front and center in the presidential race. ¬†It will be interesting to see how states respond. ¬†Mississippi may stop issuing marriage licenses altogether. ¬†Other states may follow suit.

There has to be a check placed on this court, and it’s up to the states and the other two branches of the federal government to do so as the Court has shown it will not do it itself.

Count this as another bad decision by the Supreme Court along with Roe v. Wade and the Dred Scott decision

Thomas Jefferson writing to William Jarvis in 1820 might as well have been writing today when he said,¬†‚ÄúYou seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

Those are the times we live in if we are unwilling to take a stand.

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