On Friday the Supreme Court of the United States redefined the definition of civil marriage. It held there is a constitutional right for two persons of the same gender to receive a marriage license in any state.
It found this constitutional right to same sex marriage under the equal protection clause of the 14th Amendment. This is the same Court that found ‘abortion rights’ in a magical box marked the right to privacy. As one previous Justice of the Supreme Court said when delving into his magical box called ‘constitutional rights not written into the constitutional’: you can do anything you want around here with five votes! You sure can.
You can read the decision here.
Don’t worry – you do not have to be a lawyer, least of all an American constitutional lawyer, to understand it. There is very little law or legal reasoning in it.
You are more likely to find what is written by the majority inside a Hallmark greeting card. Justice Kennedy for the majority writes: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” So there is now a constitutional right not to be lonely. You heard it here first.
Whatever your views on gay marriage, at least in Britain it was legalised by democratic means in Parliament or in Ireland by plebiscite. The Supreme Court of the United States (SCOTUS) just makes up the law as it goes along. So now we have SCOTUS marriage.
Justice Scalia, as always, delivers the scathing dissent. Marriage law and customs have always been left to the states to decide. For the Supreme Court to say that limiting marriage to persons of different gender is now unconstitutional is nonsense.
Scalia believes that this extraordinary overreach by the Court itself means the Court “is a threat to America democracy.” In fact, the “Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
Justice Scalia believes the issue a gay marriage is a policy one that should be settled by the individual states: “the public debate over same-sex marriage must be allowed to continue.” However, with this decision this democratic process is ended by judicial fiat.
Scalia is unusual in that he wants less power not more. For him it is neither here nor there whether he is personally ‘for or against’ gay marriage. It is the people and their elected representatives that should decide such a change – not the nine unelected unrepresentative Justices of the Supreme Court.
So unrepresentative is this ‘committee of 9’ that Scalia believes it “violates a principle even more fundamental than no taxation without representation: no social transformation without representation.”
The legalisation of gay marriage across the states will have serious consequences for freedom of religion and expression. Expect anyone who dissents from view of the liberal majority to have their employment, businesses and livelihoods threatened. We have been warned.