Recently, five U.S. Supreme Court Justices mysteriously discovered that the Fourteenth Amendment requires Kentucky and the rest of the country to recognize out-of-state same sex marriages and offer licenses to in-state same-sex couples seeking them. Chief Justice John Roberts duly congratulated the plaintiffs but noted the ruling had nothing to do with our nation’s cherished legal document. “Celebrate…,” Roberts told the victors “But do not celebrate the Constitution. It had nothing to do with it.”
Dissenting judges noted that while the case was short on legal reasoning, it was long on policy arguments and political philosophy. The marriage ruling is not unlike the contortions used to uphold the Affordable Care Act by substituting the plain meaning of words and phrases for a political outcome. The law required health care exchanges to be “established by the states.” The court ruled “established by the states” actually meant something else. An incensed Antonin Scalia responded, “[t]hat is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
Scalia called the ACA ruling “applesauce” and “interpretive jiggery-pokery,” and warned that context always matters because “it is a tool for understanding the terms of the law, not an excuse for rewriting them.”
In Pixar’s classic movie “The Incredibles”, the hyperactive superhero costume designer Edna Mode ignores objections from a superhero in hiding. “Yes, words are useless! Gobble-gobble-gobble-gobble-gobble! Too much of it, darling, too much!”
Gobble, gobble, gobble and just like that the court altered a controversial law’s clear meaning one day in order to uphold it and spun a new constitutional right to same-sex marriage the next. Five Justices in Black Robes meet Edna Mode. Or The Emperor and his new clothes. We find that even dignified regalia and lofty words do little to cover naked and unashamed power grabs. Especially when they do a great disservice to the democratic process.
Both rulings were hailed as big wins for the political left but Americans from across the political spectrum lose when the rule of law is flaunted and the political process eviscerated. A rainbow flag might have been projected on the White House over the weekend, but the ruling paints a picture of utter disregard to the 13 states that constitutionally defined marriage between one man and one woman. Most other state laws and constitutional amendments (31 altogether at one time) were undone, not by the ballot box, but by judicial fiat. Breaching such legislative and legal boundaries is a slap in the face to the millions of voters who approved man/woman marriage by their vote and the countless others who engaged in various ways in this great experiment we call self-government.
When the vote and voice the people no longer matters, there is a great threat is to the idea of self-government — something we prepare to celebrate every July 4. Shot down is the idea of federalism — that which is not explicitly granted to the federal government belongs to the states. And up in smoke goes the Constitution which purportedly guarantees a right to same-sex marriage when it is completely silent on the issue altogether. It is preposterous for Justice Kennedy, who wrote the majority opinion in Obergefell, to pontificate about rights, liberties and human dignity without fixed moral or legal reference — something our founders relied on when they crafted the Declaration of Independence.
Already are the left leaning opinion columnists calling for tax-exempt status to be removed from churches and nonprofits who will not abide by the prevailing court-imposed public policy. So the question now is: will gay marriage revolutionaries be tolerant of beliefs they view to be immoral? Will gay rights activists respect equality of expression to their opponents and uphold their right to conscientiously object to the new definition of marriage?
If the victors refuse to afford tolerance, then cultural casualties will be many. Expect faith-based child welfare agencies like Kentucky’s Sunrise Children’s Services to be rejected from performing a great service the state and so many of its children depend upon. Funding is likely to be cut and their state license in jeopardy. Expect private university students at St. Thomas More and Asbury prohibited from participating in federal financial aid programs. Accreditation of religious schools is also on the line.
The Court’s word on marriage is revolutionary — a far cry from our Founders word on the idea of self-government. After all, they appealed to Divine Providence, which religious conservatives believe to be the final Word on this matter.
Richard Nelson is the executive director of the Commonwealth Policy Center, a nonprofit public policy organization. He resides in Cadiz with his wife and children.