by Dr. R. Albert Mohler Jr.

Saturday • June 27, 2015

US Supreme Court in Washington DC in bright sunlight

Everything has changed and nothing has changed. The Supreme Court’s decision yesterday is a central assault upon marriage as the conjugal union of a man and a woman and in a five to four decision the nation’s highest court has now imposed its mandate redefining marriage on all fifty states.

As Chief Justice Roberts said in his dissent, “The majority’s decision is an act of will, not a legal judgment.”

The majority’s argument, expressed by Justice Kennedy, is that the right of same-sex couples to marry is based in individual autonomy as related to sexuality, in marriage as a fundamental right, in marriage as a privileged context for raising children, and in upholding marriage as central to civilization. But at every one of these points, the majority had to reinvent marriage in order to make its case. The Court has not merely ordered that same-sex couples be allowed to marry – it has fundamentally redefined marriage itself.

The inventive legal argument set forth by the majority is clearly traceable in Justice Kennedy’s previous decisions including Lawrence (2003) and Windsor (2013), and he cites his own decisions as legal precedent. As the Chief Justice makes clear, Justice Kennedy and his fellow justices in the majority wanted to legalize same-sex marriage and they invented a constitutional theory to achieve their purpose. It was indeed an act of will disguised as a legal judgment.

Justice Kennedy declared that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex cannot be deprived of that right and that liberty.” But marriage is nowhere to be found in the Constitution. As the Chief Justice asserted in his dissent, the majority opinion did not really make any serious constitutional argument at all. It was, as the Chief Justice insisted, an argument based in philosophy rather than in law.

The Supreme Court’s over-reach in this case is more astounding as the decision is reviewed in full, and as the dissenting justices voiced their own urgent concerns. The Chief Justice accused the majority of “judicial policymaking” that endangers our democratic form of government. “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,” he asserted. Further: “Over and over, the majority exalts the role of the judiciary in delivering social change.”

“The majority,” he made clear, “lays out a tantalizing vision for the future for Members of this Court. If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”

That is a haunting question. This Chief Justice’s point is an urgent warning: If the Supreme Court will arrogate to itself the right to redefine marriage, there is no restraint on the judiciary whatsoever.

Justice Antonin Scalia offered a stinging rebuke to the majority. “This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government,” he stated. Justice Scalia then offered these stunning words of 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.”

For the rest of the post…

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