Commentary

Obergefell Decision Will Destroy American Society Within Two Generations

Lynn Wardle
By Lynn Wardle | July 29, 2016 | 1:25 PM EDT

U.S. Supreme Court building with rainbow flag pictured waving above. (AP Photo/Andrew Harnik)

2015 was the eight hundredth anniversary of the signing of Magna Carta.  2015 also was the year in which the Supreme Court of the United States decided in Obergefell v.Hodges that the U.S. Constitution requires all states to legalize same-sex marriage. The contrast between those two events is profound.

Both events dealt with rights.  At Runnymede, along the River Thames, not far from Windsor castle, King John met with a group of barons on 15 June 1215.  The barons had a number grievances including growing taxes, delayed access to justice, illegal imprisonment, threats to their church, and their waning influence in public affairs.  The Magna Carta signed that day by King John guaranteed religious (Church) rights, protected the aristocracy from punishment with “due process of law,” secured prompt access to justice, protected marriage rights, and limited taxes on the barons.

Eight hundred years and eleven days later, on 26 June 2015, in Obergefell v. Hodges, the Supreme Court of the United States effectively repealed some of the rights protected by Magna Carta.  Obergefell repealed the right of self-government regarding the meaning, definition and requirements for marriage in all of the states.

As Justice Scalia, dissenting, explained: “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views … . That is exactly how our system of government is supposed to work.” (Scalia, dissenting)

“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.” (Scalia, dissenting)

In Obergefell, government of the people, by the people and for the people was replaced by government by the judiciary.  As Scalia emphasized:

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” (Scalia, dissenting)

Justice Scalia also pointedly condemned “the hubris reflected in today’s judicial Putsch.” (Scalia, dissenting opinion) He described the Obergefell opinion, written by Justice Kennedy, as “couched in a style that is as pretentious as its content is egotistic,” filled with “silly extravagances” and “showy profundities” that are “often profoundly incoherent.”  (Scalia, dissenting opinion) He added: “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”  (Scalia, dissenting) Ouch!!

Concluding, Justice Scalia directly charged the majority in Obergefell with the fatal flaw of hubris and of undermining the Court’s claim to legitimacy. “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. … With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” (Scalia, dissenting)

Justice Scalia was not alone in his contempt for the Obergefell decision.  All four dissenters wrote very strong, critical opinions.

Chief Justice Roberts excoriated the majority for cheap judicial legislation.

“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.” (Roberts, C.J., dissenting)

The Chief added: “[F]or those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that [is] much more difficult to accept.” (Roberts, C.J., dissenting) (emphasis added).

Justice Thomas mourned:  “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.” He specifically reviewed the history of Magna Carta’s requirement of adherence to due process “by the law of the land” and the American Founder’s adoption of the procedural meaning of “due process.” (Thomas, dissenting)

Justice Alito, added: “The Constitution says nothing about a right to same-sex marriage … .” Rather, The Constitution leaves that question to be decided by the people of each State.”  He added: “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.”  (Alito, J., dissenting)

Justice Alito also lamented: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”  He warned that “all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.” (Alito, J., dissenting)

As marriage undergirds society, Obergefell’s redefinition of marriage will destroy American society within two generations.

How far Obergefell falls from Magna Carta!

Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University.  He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.

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