Love Wins, America Loses

America is 239 this year. It’s a great place if you ask me. I haven’t been to a lot of places outside of the United States, but I’ve been to enough to know that this is the greatest place on the planet to live. I’m grateful every day that I somehow landed here when I was born.

A couple years ago I did a post about America and how lawyers were great defenders of freedom, especially Justice Kennedy on the Supreme Court.  One of the quotes I shared at the time from his Prop8 dissent was: “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.”

Apparently Justice Kennedy forgot this when he wrote his majority opinion in Obergefell v. Hodges essentially making same-sex marriage legal nationwide. As Chief Justice Roberts notes in his dissent: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

The Justice Kennedy of 2013 agreed with that statement. Instead, the Justice Kennedy of 2015 thinks that his opinion is now more important than that of the people. His opinion is not based on any precedent whatsoever. Now, don’t get me wrong, the Court has always found new implied, fundamental rights (i.e. right to privacy, right to travel, etc.) under a Fourteenth Amendment Substantive Due Process Analysis. The problem is that they completely abandoned any principles that they typically adhere to. As Justice Kennedy said himself “One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.” As Justice Roberts points out, there are specific guidelines the Court adopted to protect the Court from subverting the democratic process. After emphasizing the importance of judicial restraint in these types of situations, Roberts explains that “[o]ur precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Roberts points out the legal and logical flaws in the Majority’s Due Process analysis and sums it up by saying “The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now.”

Roberts also shows the flaws in the Court’s Equal Protection Clause analysis by saying that “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions….In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”

As both Roberts and Scalia point out, this is worrisome for a democratic society. With one opinion and five votes, half of the state’s marriage laws were invalidated. This is despite the recognition by Justice Kennedy two years ago that “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” Apparently no more. The debate that was occurring at ballot boxes across the country is now ended. If this case sets the precedent that five people can end the democratic process on a particular issue, as Justice Roberts points out, “Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”

In a lot of ways this has been a long time coming. Alexander Hamilton warned about the danger of the numeration of specific rights in the Constitution in The Federalist Papers.  I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.” Essentially, Hamilton was saying that the Constitution itself is a Bill of Rights to let the people govern themselves and protect them from the Government depriving them of liberty.

Justice Thomas sums it up well in his dissent in Obergefell, as he rejects the only real argument that the Majority makes in favor of its decision: dignity. “The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity….Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.” We are all children of God and that indeed does give us inherent worth.

Regardless of where you are on the issue, the Court’s ruling is worrisome. Religious freedom is on the attack. If you support traditional marriage, you are a hater. A bigot. Intolerant. The court essentially agrees with that by not even mentioning or recognizing religious freedom in its opinion. The irony is that many states have protecting religious freedoms when legalizing same-sex marriage through the democratic process. In so doing, the Court and society as a whole has forgotten the definition of tolerance. “A fair, objective, and permissive attitude toward those whose opinions, beliefs, practices, racial or ethnic origins, etc., differ from one's own.” By not accepting the other side’s view, they are showing their intolerance. It’s a two way street. We will have to see how this one plays out, but it does not look good.

Our system is founded on the rule of law, and this decision provided neither predictability nor stability regarding any sound legal theory. It was nice prose and sounded good. I mean who can object to Kennedy’s closing statement sounding good. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women 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. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” What the Justice Kennedy of 2015 forgets is that it wasn’t for him to decide what the definition of Marriage is. That is for the people to govern themselves. For as he said himself “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.”