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July 2, 2015
Column #1,766
Supreme Court OKs Same-Sex Marriage
By Mike McManus

In an historic 5-4 decision, the Supreme Court ruled that the Constitution guarantees a right to same-sex marriage. "No longer may this liberty be denied," wrote Justice Anthony Kennedy.

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were." He argued that marriage is a "keystone of our social order." What the plaintiffs were seeking was "equal dignity in the eyes of the law."

However, Justice Antonin Scalia called the decision a "threat to American democracy," because it robs citizens of "the freedom to govern themselves."

He flatly stated that "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 on the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

Why did he say that?

By votes of more than 50 million to 30 million, 32 states passed state constitutional amendments that defined marriage as the union of one man and one woman. Those votes were swept aside by Justice Kennedy and four liberal justices on grounds that the Fourteenth Amendment passed after the Civil War, guaranteed that no State shall "deprive any person of life, liberty or property without due process of law."

Kennedy argued that "these liberties extend to certain personal choices central to individual dignity and autonomy." Like same-sex marriage.

What? As Justice Clarence Thomas wrote in dissent, "It is hard to see how the 'liberty' protected by the Clause could be interpreted to include anything broader than freedom from physical restraint." The Fourteenth Amendment gave former slaves the liberty to move from plantations to cities, for example.

Justice Samuel Alito asserted, "The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term 'liberty' in the Due Process Clause of the Fourteenth Amendment encompasses this right."

The decision was corrupt at another level. Justices Ruth Bader Ginsburg and Elena Kagan have both performed same-sex weddings. They should have recused themselves, refusing to vote on the issue since their actions clearly demonstrated they were not impartial judges.

Had they done so, the vote would have been 4-3 against imposing same-sex marriage on the country.

Chief Justice John Roberts wrote, "Stripped of its shiny rhetorical gloss, the majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority's position indefensible as a matter of constitutional law."

He argued that "courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws."

State laws limiting marriage to opposite sex couples "involve no government intrusion. Same-sex couples remain free to live together, to engage in intimate conduct and to raise their families as they see fit." However, Roberts warned that same-sex marriage could lead to "plural unions" and "polyamorous relationships."

He noted that when decisions are "reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say…But today the Court put a stop to all that" by removing the decision from the democratic process.

Roberts warned, "There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court."

Scalia put it more pungently: "A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."

Alito also warned that the Court's decision "will be used to vilify Americans who are unwilling to assent to the new orthodoxy." It will be "exploited by those who are determined to stamp out every vestige of dissent."

Finally, he predicted the decision "will have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that on the rest of the country, "Americans should worry about what the majority's claim portends."

America's future has grown more bleak.

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