Court Monitor

A Roe v. Wade on Marriage, by 5-4

By a margin of only 5-4, the U.S. Supreme Court held that millennia of tradition on marriage is wrong, the vast majority of the States are wrong, and the Bible is wrong. The Court invented a new constitutional right to same-sex marriage in Obergefell v. Hodges, and thereby engaged in judicial supremacy reminiscent of Roe v. Wade. The Court demands that all 50 States, and all territories of the United States, begin performing same-sex marriages despite local laws prohibiting them.

But unlike Roe v. Wade, there was immediate outrage by four dissenting Justices and by many Republican leaders. Justice Scalia described the majority opinion as a "threat to American democracy," and Chief Justice Roberts wrote that it opens the door to polygamy. Several presidential candidates announced that the decision was illegitimate and, as president, that they would not enforce it.

Other landmark mistakes by the Court, such as Dred Scott, were deprived of effect by not being enforced. As Justice Scalia explained in his dissent in Obergefell, quoting Alexander Hamilton, "The Judiciary is the 'least dangerous' of the federal branches because it has 'neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm' and the States, 'even for the efficacy of its judgments.'" Justice Scalia added, "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."

The 7-2 Court decision in Roe v. Wade did not settle the issue of abortion, and today some liberals admit that its judicial activism proved to be hurtful to their side. Will the 5-4 Obergefell decision become a similar albatross to the Left?

The Obergefell majority chanted "dignity" nine times and "profound" six, with analysis more like a high school essay than a reasoned decision in law by the highest court. Its conclusion falsely pretends that the Constitution, rather than merely five Justices, requires that result: plaintiffs "ask for equal dignity in the eyes of the law. The Constitution grants them that right." But as Justice Thomas pointed out in his dissent, "the Constitution contains no 'dignity' Clause, and even if it did, the government would be incapable of bestowing dignity."

The Court majority vaguely based its new right of "equal dignity" in the Due Process and Equal Protection Clauses of the 14th Amendment, and before the ink was barely dry on the decision an attempt began in Montana to use it to create a right to polygamy.

The Obergefell decision is historic in ways that cast doubt on its authority. Never before has the Supreme Court invented a new constitutional right with such a slim majority, and never before has the Court so directly contradicted fundamental teachings of the Bible. In refusing to abide by the decision, at least one Southern clerk has already resigned, declaring that "I am a follower of Christ."