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Government & Politics

SCOTUS Endorses 'Gay Marriage'

Five justices rewrite the law and undermine the Third Pillar of Liberty.

John J. Bastiat · Jun. 26, 2015

Continuing to goose-step onward in its blitzkrieg against Rule of Law in America, the Supreme Court ruled 5-4 today in favor of allowing homosexuals the “right” to marry. The ruling effectively invalidates bans on same-sex marriage remaining in 14 states and mandates that homosexuals can marry anywhere in the U.S. The importance of this ruling, especially for Christians, cannot be overstated. Nor can the damage done to the Third Pillar of Liberty.

Justice Anthony Kennedy, who wrote the majority opinion in the other three major homosexual-rights cases over the past 20 years, wrote the majority opinion. He was joined, of course, by the reliably liberal clown act that is the leftist side of the bench: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Rather than rehash the sordid trail of this abrogation of Rule of Law, we thought we’d let the dissenting justices (who wrote four separate dissents) address the issue themselves.

However, note that the dissenters agree with Chief Justice John Roberts, that their vote was not about the merits of same-sex marriage, but “about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”

Justice Roberts wrote:

“Petitioners make strong arguments rooted in social policy and considerations of fairness. … 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. … The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

(We note here that Roberts should have held this same position in regard to his overruling of Rule of Law in the ObamaCare decision earlier this week – he can’t have it both ways.)

Roberts continued, “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”

“But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”

“Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to 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.”

Justice Antonin Scalia noted:

“This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government.”

“So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s 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 — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ 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.”

“These [precedent] cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): ‘[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.’”

“But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.”

“But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.”

“They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds — minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly — could not.”

Justice Clarence Thomas explained:

“The Court’s 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.”

“Yet the majority invokes our Constitution in the name of a ‘liberty’ that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that 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.”

“Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue ‘beyond the reach of the normal democratic process.’ But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation.”

“The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.”

“Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

We couldn’t have said it better ourselves.

The impact of this ruling will be felt far and wide. It won’t be simply Christian bakers, florists and photographers who are assaulted by the Rainbow Mafia for daring to have their own conscience. Christian churches, schools, ministries, NGOs and those of all faiths will soon be in the crosshairs for opposing this heretofore undiscovered constitutional right. This is only the beginning, and despite Obama’s assertion this settles the matter, this issue is no more settled than when the SCOTUS invented a “right to abortion” in our Constitution back in 1973.

Addendum: Back in 2004, Barack Obama declared, “I have been very clear on this. I have said I am not a supporter of gay marriage. I think the term marriage itself has strong religious roots and a strong tradition that means something special to people in this country.” How times change. As the political winds shifted, he came out of the closet, so to speak, in 2012, saying he supported same-sex marriage. And after Friday’s ruling, Obama crowed that sometimes “justice … arrives like a thunderbolt,” and gloried in the “victory for America” the decision represented. He even lit up the White House like a rainbow.

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