Marriage Ruling, Constitutional Law or "Putsch?"

               " ...  nor shall any State deprive any person of life, liberty, or  property, 
               without due process of law; nor to deny to any  person within its 
               jurisdiction the equal protection of the laws."
                                                                      -- U.S. Constitution, 14th Amendment




On June 26, the U.S. Supreme Court in Obergefell v. Hodges, held “[T]he right to marry is a fundamental right inherent in the liberty of the person. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

Regardless whether you favor or oppose same-sex marriage, this decision is terrible constitutional law. (Note: I am discussing only constitutional law; not whether same-sex marriage is right or wrong.)

My test of whether something is constitutional or not, is answered by this simple question:

If the people who ratified the constitution, and later approved the 14th Amendment in 1868, had known at those times that the Constitution and the amendment would subsequently be given the interpretation that the five judges in this case gave it, would they have ratified the Constitution or approved the 14th Amendment?  In ratifying the 14th Amendment, did the American people ever, for an instant, dream that the word “liberty” as used in the amendment encompassed the right of same-sex couples to marry?

In a democracy the people -- not the judges —-- have a right to rule. Our Constitution, and our state constitutions, give the people and their elected representatives the power and the right to make the laws. The judges have a sworn duty to support the Constitution; not to rewrite it. There is nothing more destructive to the concept of constitutional government  than five unelected judges ignoring the intent of the people who ratified the Constitution and amendment, and giving it their own more enlightened modern-day interpretation.

When judges “discover” a heretofore unknown constitutional right, they strip the people and their  elected representatives of power to decide the question for themselves.

Justice Anthony Kennedy, author of the majority opinion writes:

“The generations that wrote and ratified the Bill of Rights and the Fourteenth
Amendment did not presume to know the extent of freedom in all of its dimensions,
and so they entrusted to future generations a charter protecting the right of  all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

“The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

“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.”


So would the people who ratified the Constitution (or the 14th Amendment) have done so, if before they voted to ratify, they had been told that someday five judges  -- armed with “new insights” -- would say the word liberty as used in the Constitution includes the right of same-sex couple to marry?

Stripped of all legal gobbledygook, what Justice Kennedy really means is that the people who wrote the Constitution and the 14th Amendment were too benighted to understand that that liberty — as they used the term — meant the right (liberty) of people to contract same-sex marriages and that it was the duty of five 21st-century judges with new insights and a better formed understanding to fix that omission, even if it meant unelected judges ignoring the intent of the American people who ratified the Constitution, and later, the 14th Amendment.

In his dissent, Justice Anontin Alito excoriates what he labels “judicial hubris.”


“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 [i. e., the five unelected judges composing the majority] 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.”

Today, many Americans are ecstatic. But if five judges can redefine “liberty” to encompass same-sex marriage, tomorrow five other judges can redefine “person” to exclude blacks and fetuses, as they did in the Dred Scott and Roe v. Wade opinions. Today’s benevolent oligarchy, can all too easily become tomorrow’s tyranny.

By the way, “putsch” means “a violent attempt to overthrow a government.”



Posted: Friday, July 10, 2015 11:00 pm - QCOnline
By John Donald O'Shea




Copyright 2015
John Donald O'Shea