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:

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.

As in Roe, the 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. ... 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[.] ... 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:

[I]t 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. 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 farther, 29 states amended their constitutions in order to reinforce the definition of marriage (as between a man and a woman), which naturally cannot apply to same-sex couples.

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.

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

Image via Pixnio.

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