The US Supreme Court has decided by the barest of margins - five votes to four - to invent the right to same-sex marriage in direct opposition to the expressed views of voters in several states. Here is
the magnificent dissenting judgement of Justice Samuel Alito:
''At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution.''
Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”
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. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.''
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices [5 for vs 4 against] 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.''
And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation… But what really astounds is the hubris reflected in today’s judicial coup d'etat.
Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims. Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends. What travesty is coming next?''
Liberals have become accustomed to the idea that Supreme Court decisions can help, but never hurt, their causes. But that isn’t true. At one time, the Court held that there is a fundamental constitutional
Subsequently, the Court held that wage and hour laws were unconstitutional because they infringed the fundamental right of contract. Both of those cases were decided on precisely the same theory as the Court’s gay marriage decision, i.e., substantive due process.
It is disheartening to see the almost universal acclaim received by a decision that is, in terms of process, a raw and unconstitutional usurpation of power. One would think that there should be many Americans who care about the Constitution, regardless of their views on gay marriage. But that does not appear to be the case.
The Way I See It......what would you think if the Court had decided the opposite? That is, if the Court had held that same sex marriage is unconstitutional, so that all state laws approving such unions are void, and all court decisions establishing same sex marriage are overruled. Would you then think it appropriate for “five lawyers,” as Chief Justice Roberts put it, to remove this issue from the democratic process and purport to resolve it by judicial fiat?
I am pretty sure you wouldn’t. I am pretty sure that in the face of such a ruling, you would howl with outrage and insist that the issue of same sex marriage be determined by democratic processes, not by political activists filling out the court along with Obama's cronies.
I realize that hardly anyone on the Left acknowledges any obligation to be consistent. But logically, the issue of same sex marriage either is governed by the Constitution, or it isn’t. The truth is that the Constitution is silent with regard to marriage, which has always been a matter of state law. To assert that the Constitution mandates gay marriage is as outrageous as to assert that it prohibits gay marriage. It does neither.