The liberal wing of the Supreme Court, notably including swing Justice Anthony Kennedy, today made same-sex marriage legal in every state of the Union. Millions, gay and straight, rejoiced.
Writing the majority opinion, Justice Kennedy acknowledged that the Constitution says nothing about gay people, let alone gay marriage, because when it was written there was no visible gay population. Same-sex marriage was not an issue. Justice Kennedy explains:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
To which Chief Justice John Roberts replies in his dissent:
… as a judge, I find the majority’s position indefensible as a matter of constitutional law….
He reads the opinion as a strict constructionist.
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. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
I find Roberts’s adherence to the letter of the law in the case of same-sex marriage very interesting, in view of his majority opinion in yesterday’s landmark decision, King v. Burwell. The case against Obamacare hinged on six words out of more than 200,000. The dissenters (Justices Scalia, Alito, Thomas) clung to those words, but Roberts ruled that they must be read in context. Clearly, one short phrase was not meant to undo over 900 pages of legislation.
The Preamble to the Constitution declares that Americans have “certain unalienable Rights … Life, Liberty and the pursuit of Happiness.” Today the Court restored those rights to a not insignificant number of the population. (Estimates of the LGBT population vary widely, from 10 to four percent, at least 9 million.)
The backbone of today’s decision, Obergefell v. Hodges, is the 14th Amendment of the Constitution. It prohibits any state from “abridg[ing] the privileges or immunities of citizens.” It also mandates the “equal protection of the laws” to every person.
Judging by their refusal acknowledge the rights and humanity of members of the LGBT communities, some contemporary jurists, conservatives, and self-proclaimed religious individuals apparently do not consider gays to be persons, let alone citizens. They insist that gays have neither the right to marry whom they choose nor even to the “pursuit of happiness,” since sharing one’s life with the beloved is a fundamental happiness.
Justice Roberts accuses the majority of writing the law, a function of the legislature, rather than interpreting it, the duty the court. I agree that it would have been ideal for each individual state to legalize same-sex marriage, but that wasn’t going to happen, and people are suffering now. “For them and their children the childhood years will pass all too soon,” writes Kennedy. A law that radically alters custom should rise from the people. The same was true in Roe v. Wade, the decision that legalized abortion nationwide. The states are having their say now, as many of them pass ever-more-severe restrictions that in some cases make abortion all but impossible.
Justice Antonin Scalia, the fiery and outspoken conservative, does not hold back:
This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
But neither can a system be called a democracy where Citizens United holds sway, when elective office costs millions and high office billions. It is a plutocracy, where money rules, and consequently, an oligarchy, where an exalted few multibillionaires call the shots. They are enabled by five unelected lawyers, including Antonin Scalia.
Let the wedding bells ring!