Friday, June 26, 2015

Unprecedented Four SCOTUS Dissents Promise to Keep Marriage Debate Open

Today, by a 5-4 vote, the Supreme Court of the United States announced a new constitutional right that requires all 50 states to license and recognize same-sex marriage.  In a rare show of disapproval, all four dissenting U.S. Supreme Court justices have issued independent dissenting opinions for today’s landmark case of Obergefell v. Hodges.

Today's SCOTUS decision does grave injury to the basic concept that the people—not the courts—make the law.  The Court has abruptly cut off the ongoing debate over the definition of marriage, unilaterally imposing its view of what’s good for society by suddenly discovering a new constitutional right that almost no one would have imagined just a few years ago.  The "separation of powers" most of us learned about in grade school is daily being undermined by executive fiat and judicial overreach.  It is time for all of us to remind our elected leaders that all governmental power ultimately resides in the consent of the governed—not in kings, dictators, or judges.

You can read the majority decision, and the four separate dissenting opinions, here.

Here are some excerpts from the dissenting justices, which show the level of alarm raised by this astonishing judicial act:

Chief Justice John Roberts:
"But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening....  The majority’s decision is an act of will, not legal judgment.  The right it announces has no basis in the Constitution or this Court’s precedent.  The majority expressly disclaims judicial 'caution' and omits even a pretense of humility, openly relying on its desire to remake society according to its own 'new insight' into the 'nature of injustice.'"
In doing so, Roberts contends, the majority justices have usurped the role of legislators and ultimately of the people themselves:
"The majority today neglects that restrained conception of the judicial role.  It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.  And it answers that question based not on neutral principles of constitutional law, but on its own 'understanding of what freedom is and must become'"
Similarly, Justices Antonin Scalia, Clarence Thomas and Samuel Alito all object to what they consider a horrifically wrong-headed decision not because they personally disagree with same-sex marriage, but because they care deeply about the role that the U.S. Supreme Court is commissioned to play in our American republic. 

Justice Antonin Scalia:  
"The [majority's] opinion is couched in a style that is as pretentious as its content is egotistic.  It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so...  The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis."
Justice Scalia also notes that at the time the Constitution’s 14th Amendment was ratified in 1868, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” 

Justice Clarence Thomas:  
"Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State.  Today’s decision casts that truth aside.  In its haste to reach a desired result, the majority misapplies a clause focused on 'due process' to afford substantive rights, disregards the most plausible understanding of the 'liberty' protected by that clause, and distorts the principles on which this Nation was founded.  Its decision will have inestimable consequences for our Constitution and our society."
Justice Samuel Alito:  
"Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.  The decision will also have other important consequences.  It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.  In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women.  The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."
From the standpoint of those who support the traditional definition of marriage, there is no way to put a positive spin on today's ruling.  It is just about as bad as it can get.  The Court has plunged our nation into a world where, as Justice Scalia put it, "the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."

We should take no solace in any assurances that our religious liberties will remain safe.  They will not.  Justice Alito is prescient in his estimation of the effect of today's decision: "It will be used to vilify Americans who are unwilling to assent to the new orthodoxy."  We fool ourselves if we rest in the belief that we are safe from those who wish to outlaw the sincerely-held views of millions of Americans who know the truth about marriage.

As we see most clearly on days like today, it really DOES matter who we elect to office, especially those who appoint judges!

May God have mercy on the United States of America!


Topper said...

Does the decision indeed REQUIRE all states to license same-sex marriages? Is it not an option for the states to legislate that they will not grant a marriage license to any couple, either opposite sex or same sex, and therefore give everyone equal treatment under the law? This was suggested very recently in Alabama. The idea is that the state would register a marriage that had been performed elsewhere, but would not license one. The state would not be in the marriage business. It may well be that the decision today does not leave this loophole, but I simply pose the question.

Robert S. Munday said...

The SCOTUS decision would seem to require any state that licenses heterosexual marriages to license homosexual marriages. I suppose that if the state were to get out of the marriage business altogether, that could be a legal solution. However, I haven't heard of any states that are thinking of doing that (your mention of Alabama is news to me), and I doubt that any state will do so--the power to regulate marriages and to give benefits is too great for most governments to give up. On the other hand, I am hearing in several quarters the idea that the Church might out of the marriage business. If the state requires marriage licenses for couples then they could have a civil ceremony. The Church would then bless a relationship between its own members according to its own religious dictates, but the "blessing" would have only a religious and not a civil or legal basis.

I think it would be a shame if churches got out of the marriage business, since it was the Church that gave marriage to the state, not the other way around. However, since the state has now gotten into the marriage business so forcefully--giving licenses, legislating benefits and tax breaks, etc., it may become a necessity that the Church merely bless marriages according to its own religious rituals, since the state is legally powerless to regulate a purely religious ceremony.

This is all speculation on my part. We have entered a "brave new world," and it is going to take some time to see how the ramifications of this SCOTUS decision play out.

BillB said...

Fr. Munday,

I believe with this decision by SCOTUS that the free exercise clause of the First Amendment is going to be essentially relegated to the trash bin of history. This is the "camel's nose under the tent" for at least the current Leftist Government (Federal naturally) to regulate the belief's of Christianity. There are religions that they will not touch, Islam in particular. This is because they both hate Christianity with the same vigor.

In this current environment, the Church should get out of the business of the civil, secular side of marriage as is done in Europe. I believe however that Christians should not consider themselves married until they are married in the Church and live according to the status within the Church even if they are secularly married.