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Saturday, July 2, 2022

Like Roe, Obergefell Needs to Go

In overturning the appalling judicial activism of the 1973 U.S. Supreme Court (SCOTUS), which, in its infamous Roe v. Wade decision legalized abortion at any stage of pregnancy throughout the U.S., the current SCOTUS writes,

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in antiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature…

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” …

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.

In other words, whatever one thinks of killing the unborn, the Roe decision of 1973 invented a Constitutional “right” and robbed Americans of the freedom to govern themselves. The result of Dobbs was to reverse this egregious legal error. As soon as it’s given the opportunity, today’s SCOTUS should do the same with the awful Obergefell ruling that forcefully legalized same-sex “marriage” throughout the U.S.

Like Roe, the majority in Obergefell largely relied on the Fourteenth Amendment to justify nullifying marriage laws in dozens of U.S. states. The majority in Obergefell concluded:

Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles.

Likewise, as in Roe, the five to four Obergefell majority discovered a “right” that heretofore had escaped U.S. citizens, legislatures, and courts for well over two centuries. And again the SCOTUS mistook itself for a legislative body. As John Roberts noted in his dissent:

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” …

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… 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.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage…Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.

Additionally, in his concurring dissent, the late-great Justice Scalia rightly concluded:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. 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.

As I noted at the time, and as did The New York Times, as recently as 2009, 31 U.S. states had put same-sex marriage before its electorate, and by an overwhelming majority (an average of 67.5%), U.S. citizens rejected same-sex “marriage” in every case. This included very liberal states such as Maine, California, Oregon, and Hawaii. Going even further, 29 states amended their constitutions in order to ban same-sex marriage and also specifically defined marriage as the union of one man and one woman.

Furthermore, many states also banned any sort of civil unions and refused to recognize same-sex “marriages” legalized by other states. All of this was rendered moot by a mere five to four majority in Obergefell.

Again, there’s no other institution in the history of humanity with more “precedent” than marriage as the union of one man and one woman. As they did with abortion, the U.S. Supreme Court should put this grave matter back into the hands of U.S. citizens and their legislators.

(See a version of this column at American Thinker and The Blue State Conservative.)

Copyright 2022, Trevor Grant Thomas
At the Intersection of Politics, Science, Faith, and Reason.
Trevor is the author of the The Miracle and Magnificence of America

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