High Court’s Same-Sex ‘Marriage’ Decision Uses 14th Amendment to Ignore 1st and 10th Amendments

Instead of leaving same-sex marriage up to the individual states to decide, the high court found a new right in the 14th Amendment.

By Rachel Alexander Published on June 26, 2015

In a sweeping, groundbreaking decision today, the U.S. Supreme Court ruled in Obergefell v. Hodges that same-sex marriage is now legal in all 50 states. Justice Anthony Kennedy, considered the swing vote on the high court, authored the 5-4 ruling. All four of the conservative leaning justices wrote their own dissents. The court could have stayed out of the fray, and allowed the people to decide in the various states, which was the position argued by attorneys representing the states banning same-sex marriage. Most states were trending toward legalizing same-sex marriage, with only 13 states left banning it. The high court’s decision was somewhat expected, having struck down part of the Defense of Marriage Act, California’s Prop. 8 and declining to hear earlier appeals of lower court decisions striking down same-sex marriage bans.

The lawsuit filed by several gay couples asked two things: 1) whether states could ban same-sex marriage, and 2) whether states were required to recognize same-sex marriages from other states. The court held that the 14th Amendment requires the states to legalize and recognize same-sex marriage.

The opinion was light on constitutional analysis and heavy on admiration for same-sex marriage. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” Kennedy wrote. “In forming a marital union, two people become something greater than they once were.”

He said that “dignity,” which he correlates to same-sex marriage, is found in the 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law.” He admitted that the court’s decision means finding new rights within the Constitution over time: “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Essentially, his majority opinion said that the 14th Amendment trumps both 10th Amendment states’ rights and 1st Amendment religious liberties. This isn’t the first time the court has read rights into the Constitution that weren’t clearly there. In one of the most radical court decisions ever, the court in Roe v. Wade found a “right to privacy” in the “penumbras” of the Constitution in order to legalize abortion.

One of the most stinging dissents was written by Chief Justice John Roberts, who only the day before joined Kennedy and the consistently liberal justices in penning the court’s opinion upholding Obamacare tax subsidies. It was the first time he had ever read his dissent from the bench. “Today, five lawyers have ordered every state to change their definition of marriage,” Roberts said. “Just who do we think we are?”

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal,” he wrote. “Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

“Whether same-sex marriage is a good idea should be of no concern to us,” Roberts went on. “Under the Constitution, judges have power to say what the law is, not what it should be.” Scalia agreed with Roberts in his dissent that it was not about whether the law was good or bad, but that the Supreme Court was overstepping its authority. “(I)t is not of special importance to me what the law says about marriage,” Scalia wrote. “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

He warned about the decision usurping democracy, “Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

In his dissent, Justice Clarence Thomas criticized the majority’s analogy to mixed-race marriages. “The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. America’s earliest laws against interracial sex and marriage were spawned by slavery.”

Many believe the Supreme Court — particularly Kennedy, the swing vote — felt the pressure of the gay rights movement. USA Today observed concerning the culmination of the same-sex marriage issue with today’s decision, “Through the battle, a patient legal strategy, savvy public relations campaign and superior financing and organization propelled the gay marriage movement past an outgunned and underfunded opposition.”

The U.S. becomes the 21st country to legalize same-sex marriage. There are an estimated 390,000 ‘married’ same-sex couples in the U.S., and roughly 1 million same-sex couples who live together, ‘married’ or unmarried.

The next battles in this arena will be over religious freedom and non-discrimination laws. Same-sex couples are expected to request to have marriages performed in churches. Justice Alito warned in his separate dissent the ramifications of today’s decision could be far reaching and totalitarian, “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy … The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

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