The U.S. Supreme Court’s deeply divided 5-4 ruling in Obergefell et al. v. Hodges marks a watershed moment in U.S. history. Not only does it establish a new federal right to same-sex marriage, but it establishes precedent for creating future laws by similar unconstitutional means of unelected judicial decree.
There, a small cadre of five lawyers — Supreme Court justices — joined ranks and declared on behalf of — or in spite of — a similarly divided nation that a federal right to same-sex marriage now exists. They did so by inferring an implied right in the Fourteenth Amendment that must, they say, involve the “fundamental right” to redefine marriage for all Americans.
In so deciding these rights themselves, this small band of elite lawyers, citing “new insight” into matters previously unknown, abruptly ended the ongoing political debate. This debate had until then been working itself out through the democratic process established by the Constitution.
And while many in the LGBT community understandably lamented the sometimes agonizingly slow democratic process, all had, it seemed, agreed the process should be democratic.
For all the comparisons between the LGBT movement and the African-American movement, the two differ in that the Legislature, with constitutional authority, through both the Fourteenth Amendment and the Civil Rights Act, had codified the rights sought in the African-American movement. In contrast, with the LGBT movement, the Court — without constitutional authority — created the same-sex marriage right on its own, outside the democratic process and in violation of the constitutional doctrine of separation of powers.
The creation of the right to a same-sex marriage by the judicial branch instead of the legislative branch not only violates the Constitutional doctrine of separation of powers, it sets a dangerous precedent for further breaches of Constitutional procedure and democratic process. We are not just participants in our great democracy; we are its custodians for future generations. We are then obliged to preserve the Constitution and our democratic institutions for future generations.
This judicial conflict between interpreting the law and making the law is captured in an alleged famous exchange between two renowned judges: Judge Learned Hand and former Supreme Court Justice Oliver Wendell Holmes. After having lunch, the two judges departed. As Justice Holmes rode away in his carriage, Hand enthusiastically exhorted him to “do justice!” Judge Holmes responded, “That is not my job. It is my job to apply the law.” Our current justices would do well to keep this constitutionally-based distinction in mind.
While many celebrate this milestone victory for the LGBT community, all should mourn and protect against the erosion of the democratic process and separation of powers that the Obergefell decision represents.