Marriage – Why the Supreme Court Got it Wrong

From CNN today, June 29, 2015

(CNN)On Friday, the U.S. Supreme Court foisted genderless marriage upon the country. Writing for a bare majority, Justice Anthony Kennedy found that the Constitution prohibits the states from defining marriage as the union of one man and one woman, as they have done since the founding of the republic, and as the vast majority of societies and religions throughout the entire world have done for millennia.

The decision is reminiscent of the “penumbras, formed by emanations” reasoning employed by Justice William Douglas in Griswold v. Connecticut, which eventually made the constitutionally unprincipled ruling in Roe v. Wade possible. In similar fashion, the court in Obergefell v. Hodgesignored history, the text and meaning of the Constitution, and prior Supreme Court jurisprudence to justify its holding that the 14th Amendment mandates the recognition of same-sex marriage.

The decision becomes all the more difficult to explain when one considers that exactly two years ago, to the day, Justice Anthony Kennedy, writing for the same court, assured us in United States v. Windsor that states rightly possess the “historic and essential authority to define the marital relation.”

Obergefell represents the proverbial dropping of “the other shoe” that Justice Antonin Scalia promised would happen in the wake of Windsor. But while the outcome itself may not be surprising, what the opinion lacks is. Entirely absent is any reliance on national or international consensus on the matter, to which the Supreme Court has all too often resorted to justify profound legal shifts on issues of landmark importance.

In Lawrence v. Texas, for instance, the court, in striking down a state statute making homosexual sodomy a crime, cited recent national laws and traditions as indicative of “an emerging awareness” that such conduct was included in the liberty the Due Process Clause protects. The court in Lawrence also conspicuously relied upon a decision by the European Court of Human Rights interpreting the European Convention on Human Rights.

The court proceeded in similar fashion in Roper v. Simmons, where it found unconstitutional the imposition of the death penalty for crimes committed under the age of 18. In Roper, the court cited a “national consensus against the death penalty for juveniles,” and further relied upon what it characterized as the “overwhelming weight of international opinion” to buttress its decision.

But Obergefell mentions no national or international consensus to support its conclusion, and that is because such consensus does not exist. In fact, if there is any consensus to speak of, it runs in quite the opposite direction.

On the international front, even the most ambitious count reveals that only approximately 21 of the 193 member states of the United Nations have adopted same-sex marriage in some form. Perhaps most important, of the 13 international tribunals to judicially address the question of genderless marriage, only a Brazilian court has judicially imposed it. And as an amicus brief filed in Obergefell by myriad international and comparative law experts reveals, judicial decisions upholding male-female marriage were issued in many jurisdictions that provide the strongest of LGBT protections, including “France, Germany, Spain, Finland, the European Court of Human Rights, and the U.N. Human Rights Committee.”

That these judicial bodies opted not to impose genderless marriage but properly deferred to legislatures to resolve the debate is instructive regarding the Supreme Court’s silence concerning any international consensus. Indeed, the “overwhelming weight of international opinion” rejects Friday’s decision.

And the situation at home in the United States is equally unhelpful. When given the freedom to choose, the states and the people have overwhelmingly decided to retain marriage as the union of one man and one woman. Despite how some pundits have overblown various poll results, the facts speak for themselves. Only 11 states, acting either through their people directly or through their elected legislators, have chosen to redefine marriage. The rest of the states have either continued to define marriage as the union of one man and one woman or have been thwarted — by state or federal courts — in their attempt to retain marriage as it has always and everywhere been defined.

That this picture is hardly “an emerging awareness” goes without saying. Indeed, even Justice Kennedy’s opinion admits that “[a]fter years of litigation, legislation, referenda, and… discussions… the States are… divided on the issue.”

So if there is a trend to speak of, it is not one of a growing consensus, but of a debate cut short, bit by bit, by a litany of judicial usurpations, culminating in Friday’s ruling.

This is no way to run a republic.

In his Gettysburg Address, Abraham Lincoln spoke of a “government of the people, by the people, for the people.” The most important words in that most memorable phrase are “the people,” for it is to them that freedom belongs and to them that its protection is entrusted.

The Supreme Court has overridden a goodly portion of the freedom that is the birthright of every American. It is now our task, using legitimate and appropriate channels, to wrest it back, and then, much like Lincoln’s audience, to preserve it for future generations.

Note:  This view is from Ken Connelly, legal counsel with Alliance Defending Freedom, which filed a friend-of-the-court brief in the marriage cases at the U.S. Supreme Court. The views expressed are his own.

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