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Black-Robed Redefiners

It’s comforting to know that our Constitution changes so easily with the prevailing wind, isn’t it? This legal “logic” borders on the incomprehensible.

On June 26th, in the Obergefell case, five Justices of the Supreme Court judged it proper to change one of the most important social institutions to ever exist — marriage. What followed was a period of somewhat undeserved jubilation on the part of same-sex marriage advocates; having achieved only a partial victory at the polling station and legislative chamber, they rejoiced at their undemocratic (and anti-democratic) victory through judicial fiat.

The paper-thin majority (no pun intended) wrote an opinion in Obergefell remarkable not only for its philosophical and polemical wording, but also for the sheer shamelessness with which it rescinded from the State its proper right to define marriage, inventing a constitutional right in the process.

Two years ago, when the Court was deciding in Windsor whether or not it was constitutional for the federal government to limit benefits only to opposite sex marriages, Justice Scalia wrote an almost prophetic dissent. In it, he writes, “[t]he only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.” Indeed, the majority in Windsor was the exact same majority that decided the Obergefell case, the same one that wrote two years ago that marriage was “reserved to the States.” Bizarrely, the majority’s basis then for arguing that the federal government has to provide benefits to same-sex married couples was that not doing so would violate this principle of States controlling marriage.

Two short years later, the same five Justices changed their minds, in unison.

These Justices, in writing their opinion, leaned more on polling data than constitutional law. The majority’s most prevalent rationale for striking down state marriage bans is the Fourteenth Amendment’s Due Process Clause, which says that no one may be deprived of liberty without due process.

Reading that phrase without proper context makes the ruling seem straightforward enough; certainly, being able to marry is a liberty, and no one is being afforded due process in any common sense. However, as the Court has repeatedly found in cases like Glucksberg and Moore, a liberty is only constitutionally guaranteed (and thus protected by the Due Process Clause) if it is “deeply rooted in the nation’s history.”

Clearly, a practice first established in the U.S. by way of a Massachusetts court ruling in 2003 is not “deeply rooted.”

The majority also errs in claiming that state laws exclude same-sex couples from the “transcendent” aspects of marriage. As Justice Thomas notes in his dissent, the majority seems to imply that the government can confer or remove human dignity or spiritual worth. The question of whether or not a church, synagogue, or mosque will recognize a same-sex marriage and thereby approve the “transcendent” aspects of that marriage is entirely separate from whether or not a secular government will validate such a marriage and provide benefits to its participants.

The logical undercurrent of every argument in the majority opinion is that if a law is seen (by the court) as demeaning, it must be unconstitutional. To you, the reader, I issue a minor challenge — read the majority opinion, and substitute polygamous relationships where the Court mentions same-sex relationships. What anyone will find is that practically any limitation on the definition of marriage “demeans” some romantically engaged group. Will the Court find a constitutional right to polygamous marriage in a few decades, provided that the polling matches up? (It’s comforting to know that our Constitution changes so easily with the prevailing wind, isn’t it?) This legal “logic” borders on the incomprehensible.

What is even more worrying is that the Court acknowledges that historical developments, not the Constitution itself, guide its thinking. The majority mentions the gradual evolution of a marriage from arranged to spontaneous, from patriarchal to egalitarian, and uses this development to invent a new constitutional right to same-sex marriage.

Every single Supreme Court precedent that the majority relied on has to do with government laws affecting opposite-sex marriages. In Loving, which the majority quotes many times, the Court struck down bans on interracial marriage while noting that marriage is “fundamental to our very existence and survival,” phraseology that necessitates a procreative potential within marriage.

Every single development in marriage before the twenty-first century took place within an opposite-sex paradigm, but the Court ignores this, making progress within a definition of marriage analogous to an actual change in the definition. Chief Justice Roberts’ exasperated question in response to all this is no surprise: “Just who do we think we are?”

As with any culture war saga, the Supreme Court has the potential to divide the country and silence debate, as it did with abortion and, now, same-sex marriage. There is still an opportunity to reform the present marriage system so as to avoid what many see as the erosion of the definition of marriage.

To these people, marriage is fundamentally and historically not a secular institution, but a religious one. If that is the case, then what business does government have in marriage to begin with? A reasonable suggestion, one that states like Alabama and Oklahoma are already exploring, is to take marriage outside of the bounds of government. Anyone who can consent to a contract can also engage in a civil union, regardless of gender or sexual orientation. This civil union may confer certain benefits to its participants, but what it does not do is force anyone to acknowledge that union as a marriage, which is in itself a loaded word. Engage in a civil union with whomever you choose, then have your place of worship endorse it as a marriage; just don’t make your fellow citizen call it a marriage and pay to support that marriage.

To my many friends who celebrated the Court’s ruling, I hope you were celebrating the result, not the legal reasoning or judicial overreach. I certainly hope you weren’t celebrating the newly-found constitutional right to gay marriage, because as Chief Justice Roberts wrote: “[The Constitution] had nothing to do with it.”

I will always support LGBT rights and acceptance in this country and in others. In that fight, however, activists must not be so ensconced in their zeal as to forget the value of democracy and seek to undo the expressed will of the People in each state. Activists should embrace the limitless opportunity to effect social change through the ballot box, not the judge’s pen.

Unfortunately, five Justices just erased that opportunity.

Michael Moroz (275)
Managing Editor

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