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July 17, 2015

8

What the Obergefell Same-Sex Marriage Decision Means for Our Democratic Institutions

by contributor
U.S. Supreme Court building
Attorney Joel Matteson questions the precedent set by the U.S. Supreme Court in establishing the federal right to same-sex marriage.

U.S. Supreme Court buildingAttorney Joel Matteson questions the precedent set by the U.S. Supreme Court in establishing the federal right to same-sex marriage.


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.

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8 Comments Post a comment
  1. Jul 17 2015

    I a fresh from the ABA London Sessions commemorating the 800th anniversary of the sealing of Magna Carta last month.

    The keynote speaker at the opening plenary featured the Right Honourable Lord Neuberger of Abbotsbury, President of the Supreme Court of the United Kingdom. Among his comments was the astute observation that their system of government is essentially more democratic than the American.

    For example, there is no strong executive, the judicial review of acts of Parliament is limited or not at all. Their constitution is not ridged, or written. At best it is a collection of documents. Their government, he more or less said, is more responsive to the will of the people at any given time than in the United States.

    I wrote in my notes “The American Revolution was a mistake.” Perhaps. But I have to say your comments about a major shift in policy being announced by the few rather than adopted by the whole are well taken.

    Reply
  2. Jul 17 2015

    SCOTUS established this precedent back in 1803. As you know, Marbury v. Madison is precedent for SCOTUS to examine and decide if a statute contradicts or violates the provisions of the United States Constitution.

    Calling this recent decision a creation of “new federal right” is similar to calling marriage between races a “new federal right.” in Loving v. Virginia (1967), SCOTUS found that marriage is a fundamental right. Elected state legislatures had criminalized marriage between races. SCOTUS overruled the will of the majority and the laws created by the States because it found marriage to be a fundamental Constitutional right (and even more fundamental than statutorily created rights, like the Civil Rights acts).

    You may not like the decision, but to imply that SCOTUS has done something new and unconstitutional simply flies in the face of over 200 years of Supreme Court precedent.

    Reply
    • Joel Matteson
      Jul 17 2015

      Thanks for your response, Derek. Indeed, the majority of the Court and many others agree with you. But reasonable minds may differ, as SCOTUS did.

      The Loving case is distinguishable from Obergefell because the Loving case was not about redefining the core fundamental definition of marriage as in the Obergefell case. Instead, as Chief Justice Roberts expressed in his dissent: “the ‘right to marry cases’ ” are distinguishable because they “stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process.”

      Rather than “flying the in face of 200 years of precedent,” there is not a single precedent for a fundamental right to redefine the core definition of marriage. Nor is there a single precedent that such right to fundamentally define marriage is a fundamental right to life, liberty, or property that is deeply rooted in our Nation’s history and traditions as required under our 14th Am. “fundamental rights” precedent. Therein lies the power grab by the Supreme Court.

      Reply
  3. Barbara A Peterson
    Jul 18 2015

    This was indeed an unfortunate power grab by this 5-4 decision. And it is certainly not a “fundamental” right to re-define the bedrock definition of marriage between one man and one woman that has endured throughout the nations of this earth for millennia. Our forefathers would be shocked at the very cavalier censorship and political correctness that has now gone amuck. To see the White House colored with the shades the rainbow in complete disregard of the Artist behind the actual rainbow itself is hilarious. Just as the unfortunate doctor caught on tape glibly sipping her wine and discussing how she “crushes above and below the thorax” to preserve saleable fetus body parts, this Obergefell decision, like Roe, is, for our country, a travesty. The polls showing “majority” support for re-defining marriage are incorrect and such a societal experiment should have obviously been left to a legislative decision by each of our states. Analogizing this to civil rights has got to make Rosa Parks turn over in her grave. For those who don’t like it, listen up: We are STILL one nation, under God, indivisible, with liberty and justice for all. And we lawyers will be held particularly accountable for letting this genie out of the bottle since we know what the old slippery slope can bring after this. While I am all for tolerance, this decision goes way beyond that. I cannot believe the incredible lack of fear of God that exists today. That clearly means, then, no faith that there is an actual God at all. Wow, back to second grade, people.

    Reply
  4. Craig Mason
    Jul 22 2015

    We are a constitutional republic, not a democracy. Rights and law are prior to “democracy” in the structure of our system, by design, as “democracy” was distrusted by our Founding Fathers as simply a necessary evil to “check and balance” a system of laws that would be slowly changed by two types of elites: (a) Common law judges re-working the law to solve pragmatic problems, and (b) elite legislators chosen from an electorate limited by property qualifications to those would be conservative in their approach to changing the rights of property, who could pass legislation, which, ultimately, would be interpreted within the common law.

    Before the property qualifications to vote came under attack in the early 1800’s (and from the fact that the frontier states did not have them), roughly 7 percent of the white male population voted in the first four presidential elections. “Democracy” was not a Founding Father value.

    The Founding Fathers had two bodies of political literature from which they drew their analyses of representative government: Ancient Greece and Rome, and 15th and 16th century Italian city-states. Class warfare was chronic, and they sought to build a government that secured rights (of the rich) and which could meet the needs of the many by civic-minded legislation, and yet which could overcome the tendency of politicians running for office to offer the poor too many resources of the rich to win elections, which then motivated the rich to seize control of the government, usually ending in oligarch-funded bloodshed, followed by a tyrant who could “balance the classes.”

    Structurally “balancing the classes” was the goal of both the Founding Fathers and of The Politics of Aristotle. “Democracy” was feared by the Founders (and by Aristotle), and so they limited it in many ways. As Aristotle said, “elections are oligarchic” as “only the wealthy, or the famous, who are friends of the wealthy” can win elections. The ancients, including Aristotle, knew that an Assembly of all citizens is truly democratic; and selection to office by lottery is truly democratic. Readers who think elections are “democratic” are already duped by oligarchs. Elections are a tool for LIMITING democracy.

    Back to the issue of gay marriage: There is no reason for right-wingers to celebrate the anti-democracy of Citizens United and then to weep over the rights-protection of Obergefell. In a system of rights untainted by religious bias, marriage contracts of all free and competent people would be equally respected, in a libertarian ideal, limited only by the sensible need to regulate the macro-economy and to regulate the massive corporations of our era.

    Gay marriage is no threat to the Republic. Valuing rights over “the mob” over “enthusiasms” (as the Founders would say) is the heart of the American system of legalism over “democracy.”

    It is the pro-oligarchic decisions like Citizens United that threaten to unhinge our balancing of the classes, leading to the non-rich being so oppressed that they turn to tyrants as preferable to our regime of (deliberately) anti-democratic rights and legalism.

    Reply
    • Jul 22 2015

      I thought Citizens United cut both ways.

      Like for example when Apple I think it was and other corporations boycotted Indiana for a defense of marriage act.

      The decision aids both camps, depending on who is in control of the corporation which decides exercising free speech one way or the other is good for business.

      Reply
  5. Robert Aronson
    Jul 22 2015

    Well said, Mr. Mason — it is nice to read something by someone who points to facts and history, and not just their personal bias couched as constitutional principles. I wonder whether the complainers above were equally critical of the “small cadre” of five lawyers who overturned the will of a majority of the American electorate to install their choice for President (George Bush), based on a theory of “equal protection” that nobody — including those five justices in prior opinions — ever thought to exist.

    Rather than accept the fact that justices, no matter how “learned” and intending to apply an outdated constitution (slaves were 3/5 of a person, and neither they nor women were allowed to vote) to very modern conditions (e.g., the effect of electronic surveillance and thermal imaging on application of the 4th Amendment), sometimes decide in a way which we (both as laypersons and lawyers) disagree — you choose to pick and choose which decisions of the Supreme Court “erode the democratic process” and “separation of powers.”

    The logic of your legislature-trumps-courts argument would mean that whenever the Supreme Court decides in a way that the current legislature doesn’t like, it can just ignore or overturn the Supreme Court decision. And I assume you would say the same thing about the President — that if he engaged in conduct that the legislature thought violated the Constitution, it could just overturn or ignore it. Evidently, your view of “separation of powers” is that the legislature has the power to have the final say in all disagreements with the President and Supreme Court.

    That is neither consistent with the Constitution itself and hundreds of years of cases interpreting it, nor with sound policy.

    Reply
    • Joel
      Jul 23 2015

      Robert,

      By “complainers,” you must mean those pesky millions—and nearly half the SCOTUS–who would advocate for adherence to that old-fashioned, and in your view outmoded, doctrine that the courts should limit their activities to interpreting the law, while allowing the people through the legislature to create the laws.

      Of course the Constitution is not perfect—that’s why we can and have amended it. Let’s not throw the baby (principal of separation of powers) out with the bathwater (the fact that the Constitution required amending through the legislature). Here is the issue: who does the amending?

      And you are right, you “assume” many things, including that anyone who disagrees with Obergefell probably agrees with Citizens United. But in either event, if Citizen United violated the same principal as alleged to be violated in Obergefell, then it was wrong there as it was here.

      You assume that a “legislature-trumps-courts” argument is being posited. But there is no such argument in the article or the Obergefell dissent. Again, the issue is not about one branch “trumping” the other, but about what the proper role of each branch is.

      Reply

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