Saturday, July 4, 2015

A Response to Obergefell v. Hodges



We are all aware that a fierce debate has been raging over same-sex marriage during the last several years. The people of 11 of our 50 states decided to expand the definition of marriage either through a direct vote or the vote of their representatives. However, the majority of the states did not change the definition of marriage, in fact most voted to reaffirm the traditional definition of marriage, including liberal states such as California. This is the way this debate should have been decided, but unfortunately the United States Supreme Court on June 26, 2015, put a stop to the debate. With that decision, as Justice Antonin Scalia clearly asserts, here is some of what we have lost,

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.[i]

Scalia says this decision is a “naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” It is abusive because this was not a decision of the people and not an election of the people but an imposed law by an oligarchy.
The pride and arrogance of the five justices who made same-sex marriage legal in all 50 states is incredible. Scalia says it best:

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. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.[ii]


[i] 576 U. S. ____ (2015) SCALIA, J., dissenting  SUPREME COURT OF THE UNITED STATES
Nos. 14–556, 14-562, 14-571 and 14–574
[ii] 576 U. S. ____ (2015) SCALIA, J., dissenting  SUPREME COURT OF THE UNITED STATES
Nos. 14–556, 14-562, 14-571 and 14–574

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