On Friday, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize such licenses issued by other states. There are four reasons for this decision:
1) The Court has taken to viewing itself as a social problem solver
This decision and others like it are enabled primarily by an understanding which fails to take a limited view of the Court’s power. This ruling also devalues a strict separation of powers and disregards any serious consideration of federalism as informed by the Tenth Amendment and the intrinsic limitations on federal power articulated in the Constitution. In reading this “right” into the Constitution, the Court played social policy maker and legislator instead of judge.
The Court makes social pronouncements it has no authority or expertise to make, such as “[i]t would misunderstand [those seeking same sex ‘marriages’] to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.” Regardless of their accuracy (these claims are quite impossible considering the governing “idea of marriage” to this point in human history is now indeed being “disrespect[ed]” here, and “marriage” is certainly not what is being promoted in all the various sectors of the LGBT movement), the Court has no authority or expertise to make such claims.
This issue should have been left to the states, but the Court chose instead to make extensive social policy claims and create a right to same sex marriage under the Constitution. As Justice Scalia pointed out in dissent, the Windsor majority blatantly contradicted itself in this decision: “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’.”
Justice Kennedy should have heeded his own advice just last term in Schuette that sensitive public policy matters should be left to the people and their legislatures in the states. Why, then, did he choose not to? He appears to feel differently about private sexual matters than other issues, as evidenced by his consideration of Bowers and Lawrence in this opinion. The fact that this feeling could come into play here only illustrates the danger of a Court departing from having a limited view of its own role. As Chief Justice Roberts noted in dissent, had the Court followed Schuette, at least the people on the losing side would have known “that they have had their say.”
2) The Court has completely accepted and assumed the validity of substantive due process
The 14th Amendment provides that the government shall not “deprive any person of . . . liberty . . . without due process of law.” This ensured that people could not be locked up by the government without fairness and proper process. However, for years, the Court has applied a notion called “substantive due process” which has (erroneously) held that this “liberty” actually itself contains all sorts of freedoms the government is required to provide the individual. Of course, this freedom cannot be absolute, so these “freedoms” are whatever the Court decides should be provided. In reality, this diminishes the ability of the people to govern their states as they see fit, with each provision of law enacted by the people that is struck down by the Court under its view of “liberty” becoming immediately null and void.
As Justice Thomas points out in dissent, this way by which rights “come into being” under the Fourteenth Amendment would not have been recognized by the Framers. There is no “right” to have the state recognize same sex relationships, because there is no liberty to government benefits, just liberty from adverse government action. The claim that such liberty includes the right to marry someone of the same sex is only the latest wound to proper due process, and the most recent way in which “substantive due process” has been used to restrict true freedom as the Constitution and Bill of Rights intended it.
3) The Court exercised naked political will to overlook gaping differences between this case and its prior marriage cases
Even assuming that “substantive due process” is valid and should be employed in the context of marriage, the Court fails to apply its own precedent on the subject correctly and overlooks huge logical gaps in applying previous substantive due process cases concerning marriage. All of the Court’s previous marriage decisions which the majority opinion relied on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To infer all those decisions (which have huge factual differences from this case) contemplated such same-sex relationships as constitutionally protected marriages is an incredible leap in legal reasoning (which is supposed to take into account law and facts). No one seriously can assert this with intellectual credibility, but it is what the Court infers.
For example, Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage (that case dealt with a marriage between husband and wife) is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’” Does Justice Kennedy sincerely believe that the Maynard Court contemplated its holding as applying to marriages besides those between men and women? The Court clearly fails to find support for its holding in its previous cases dealing with marriage, and must engage in logical leaps if it is going to rely on any of them now.
4) The members of the Court largely have discarded any notion of higher authority as informing human affairs
Perhaps due to the lack of gravity with which they view a personal relationship with God in their own lives, the Justices have failed to keep in mind what higher law or natural law would have said about the legal issue before them (as Justices would have more likely done 100 years ago). Earlier in our history, Justice Joseph Story referred to man’s “responsibility to [God] for all our actions.” Can we imagine if such reasoning was applied in the marriage decision today?
The present Court’s reasoning is only more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (in his opinion, Justice Kennedy stated the institution of marriage “has evolved over time”). The Court arrives at its conclusion today by viewing marriage as simply whatever man says it is; once its reasoning is divorced from higher authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.
Understanding these four points of concern, some of which have been developing for quite some time, helps one make sense of how the Court arrived at its erroneous conclusion that there is a constitutional right to same-sex “marriage.”