Following yesterday's historic 6:3 Supreme Court decision enshrining the tax known as Obamacare, there was little surprise moments ago when in one of its last remaining decisions in re: Obergefell v. Hodges, the most liberal Supreme Court since 1960 [8] just declared gay marriage legal nationwide. The decision, supported by all the women on the SCOTUS, came down in a 5:4 vote with Ginsburg, Sotomayor, Kagan, Breyer and Kenedy voting for, while Roberts, Scalia, Thomas and Alito dissented.
As always, the most interesting contents are in the dissent, which today was, ironically, written by Roberts who in the past 48 hours has made many friends and maybe even more enemies. Some of the key remarks:
... this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legaldisputes according to law. The Constitution leaves no doubt about the answer.
As for the president's immediate response...
Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins [9]
— President Obama (@POTUS) June 26, 2015 [10]
... it is not to be confused with his pre flip-flop take from several years ago [11]:
... as a candidate for president, Obama told Rick Warren’s Saddleback Church that marriage could only extend to heterosexual couples. “I believe that marriage is the union between a man and a woman,” Obama said at the time. “Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix.”
And here's Mike Huckabee's different 'perspective'...
Former Arkansas governor and 2016 Republican presidential candidate Mike Huckabee made the following statement in response to the Supreme Court's ruling on Obergefell v. Hodges.
"The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do-redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat.
"This ruling is not about marriage equality, it's about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court's most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny."
"The Supreme Court can no more repeal the laws of nature and nature's God on marriage than it can the law of gravity.
Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment."
Full decision and dissent (pdf [12])
