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The Court’s Assault on Democracy and States’ Rights
One of the ironies of the Supreme Court’s decision in Obergefell v. Hodges is that it is being touted as a victory for civil rights. Surely it’s an unusual civil rights victory that disenfranchises the people of all 50 states on a critical issue. After a mere decade of political debate on the topic of same-sex marriage, the voters have been told that our opinions are no longer needed. Justice Kennedy will tell us what we think.
The violence to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity” or “autonomy” or any of the other vacuous phrases contained in Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).
Granted, the framers’ vision of federalism is long gone; however, there had been something of a resurgence of federalism in recent decades. The Supreme Court has ruled, for example, that the federal government cannot “commandeer” state officials into implementing federal policy; it has put at least some limits on the New Deal’s expansive Commerce Clause; and, in NFIB v. Sebelius, it finally held that there are limits to the federal government’s fiscal coercion of states.
The rise of same-sex marriage was itself a classic product of American federalism – yet another irony of the current situation. Back when the only federal law on the subject was the Defense of Marriage Act, the states were experimenting with civil unions and holding referenda on gay marriage. In a 2009 article on “blue state federalism,” Emory law professor Robert Schapiro argued that “states have taken the lead” in advancing gay marriage. And that’s exactly the way things are supposed to work, according to none other than . . . Justice Kennedy. In 2013, Kennedy authored the opinion striking down DOMA, asserting that: “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
What a difference two years makes. Far from being the “exclusive province of the States,” marriage law is now to be defined by the Supreme Court, with no guiding principles other than its “reasoned judgment,” as Kennedy puts it.
The impact of Obergefell will go far beyond the issuance of marriage licenses. Because same-sex marriage is now deemed to be a “fundamental” right, states are forbidden to take any action that infringes or even “burdens” that right. Judges and bureaucrats will soon order states to remove any support, direct or indirect, for institutions that oppose gay marriage. This trend has, of course, been underway for some time – witness the Catholic Church’s withdrawal from the adoption business in states where adoption agencies must place children with same-sex couples. But it’s one thing to be forced out of Massachusetts; now the Church must reconsider its adoption services throughout the US.
Can states grant tax-exempt status to churches that oppose same-sex marriage? Can school vouchers be used at schools affiliated with churches that oppose same-sex marriage? Can a state university employ a professor who opposes same-sex marriage? Remember that the Court now equates laws against gay marriage to the old anti-miscegenation laws. Thus, in the preceding questions, substitute “mixed-race marriage” for “same-sex marriage,” and the answers, I think, are reasonably clear.
State control over education? States will surely be obliged to include in their curriculum some content teaching the new understanding of marriage. Perhaps Heather Has Two Mommies will be required under the Common Core. Who would dare oppose that? Any dissent will be viewed as sheer bigotry.
Rights of conscience? We’ve all heard about photographers and caterers being sued for refusing to facilitate same-sex weddings. Before Obergefell, states had a chance to rein in these suits – or at the very least to balance the conscience rights of religious Christians against the claims of aggrieved couples. But now that gay marriage is a “fundamental right,” that right must be enforced not only by state actors but by private actors in any “public accommodation.” Depending on your state, public accommodations can include restaurants, stores, hospitals, gyms, barbershops, hotels, libraries, bookstores, concert halls, mortuaries, and trailer parks. The zealous bureaucrats in state human rights agencies will demand not only acceptance of, but support for, gay marriage in all these venues. Elected officials will be powerless to stop them.
I don’t mean to suggest that we should throw in the towel on marriage or federalism. But I do think we need to pause to take in the scope of what has just happened. Five unelected judges have imposed a still-controversial definition of marriage on the entire country. There will – and should be – a backlash, but our anger should be focused on the Court’s usurpation of democratic self-government and its implicit threat to religious liberty.
Published in General, Law, Marriage
June 26 is the anniversary of the assassination of the Archduke Franz Ferdinand and his wife Sophie. Just like that set off a train of events and largely unpredictable consequences we’re still feeling today, so too with the ruling on SSM this June 26
In the days/weeks/months to come we’re going to hear a lot about a constitutional amendment to overturn Obergefell. I’ll predict that a drive to enact a constitutional amendment specifically to overturn or ameliorate the ruling will go nowhere and be a complete waste of time (42 years after Roe we don’t have a Human Life amendment). Any pol in favor is pandering and any organization favoring is fundraising. Both are non serious.
Where we go from here is either a further descent into tyranny (99% likely ), a secession crisis (0.99% likely ) or a successful Article V Convention of States (0.01 % likely )
I think its safe to say at this point that we need to get serious about how the 14th amendment changes all that.
there have been three legal eras in American jurisprudence:
The Rule of Law
The Rule of Lawyers
The Rule of Anthony
Is the United States of America one people governed by many bodies? Or are the United States separate peoples united in political alliance for common defense against invasion?
How would the founders answer this question? How would we answer today?
If we are one people, then this issue had to be addressed at the national level because it rests at the foundation of culture. States laws could vary by many ways and degrees, but this most basic agreement is necessary. In any contract, there are limits to how terms may be interpreted. This disparity of definition is irreconcilable.
Suppose that one state determined that people could marry their pets. Would other states honor those licenses? Of course not. Some agreement over the qualities of “marriage” is necessary. The founders would have scoffed at the notion that “gay marriage” licenses could be an acceptable disagreement between the states.
Aaron Miller : “Suppose that one state determined that people could marry their pets. Would other states honor those licenses? Of course not ”
You’re sure about that?
Who are we to limit love? #lovecantwait and all that.
BTW PTB please note. A QUOTE feature that works in the mobile format would be awesome.
Any thoughts on potential forms that backlash will take? I can think of none.
Personally, I would place the chances of options two or three much higher than you. I sincerely hope that the Article V Convention has a higher chance than the secession crisis. But I really don’t think the nation is in a mood for a further descent into tyranny.
Agreed. Standing for the rule of law, not the prohibition or approval of assorted kinds of marriage, is the more important concept.
Is there a list of other ‘in-kind’ usurpation by the courts in the past 50 years, not related to marriage?
I plead ignorance on the list, but would be interested to explore the topic.
Maybe we should begin being more precise and call it State Sovereignty. Rights could be interpreted as something bestowed by the robed oligarchs.
Yes. The power of words! “States’ rights” is all tied up in slavery.
Is it only the Judiciary who’s job it is to interpret the Constitution, or all three branches of the Federal Government? Co-equal branches of government (Legislative, Executive and Judiciary) all have responsibility to interpret the Constitution.
Basically, everything is now a muddle, and not just for us, for the whole country. Those people who are celebrating, they have no idea the carnage that has been unleashed. They think people will just come around to their way of thinking. They have no idea what they have unleashed, how it has harmed and will continue to harm children, our nation and the rule of law. They are simply clueless. A lot of people do understand, however, and we can only hope that good sense can be restored. What’s interesting is that I discussed this with my Sunday School class of 15 12-14 year-olds today and they understand the problems perfectly. They might be the ones who save us.
Yes. Individuals have rights; governments have powers – in principle, only those delegated to them by constitutions. If we still had a constitutional republic, the supreme court (sic) would have left the matter to state legislatures. Under the full faith and credit clause, states which did not enact same-sex marriage would have been obliged, nonetheless, to recognize couples married in those states which had enacted it. It would have been messy, but constitutional and consistent with actual democracy.
It is ironic that “substantive due process” discovers new rights found nowhere in the text of the Constitution, while the procedures of due process makes it all but impossible to exercise fundamental rights formerly believed to be inalienable. i.e. process has generally eviscerated the substance of fundamental enumerated rights, like freedom of speech, religion, assembly, bearing arms, freedom from search and seizure, freedom to contract, use of one’s property, etc. Although it has happened incrementally over 100 years or so, we are no longer a nation of laws. This opinion is merely a bold restatement of that sad fact.
In my opinion, the decision will unleash the Law of Merited Impossibility.
I’m seeing more and more that the 14th Amendment is behind—or is being used as an excuse for—all kinds of centralizing mischief. Because of its historic connections with civil rights for blacks (note that I don’t claim it has much current use in that regard), I don’t think we’ll ever manage to repeal it, but we ought to explore ways of limiting its scope. It is too vague, too open ended, to be kept to its original application, and in its current incarnation, it infringes on too much of the 10th Amendment.
Part of me wants to say that what’s sauce for the goose is sauce for the gander, and to exact my revenge on the Left by using the 14th Amendment to nationalize gun rights in their most liberal form: open carry, all weapons, wipe out registration of all types, and so on. But I really do believe in state sovereignty, even in areas where I think a state is dreadfully wrong. I actually want to *convince* those states’ citizens to legislate these things my way, rather than to weaponize the 14th Amendment and force them to do it my way. I believe in democracy and popular soveriegnty as much as the rights I want these institutions to protect.
First move might be the Law of Unintended Consequences. Already people are calling for concealed carry license recognition across state lines. Attacks on churches affect many people, not just “the church.” Not only are they vital to childcare and church schooling, but tithers will not appreciate losing their tax deduction and knowing the church must now pay some of the tithes in taxes. An army of folks willing to call for the death of the IRS and the tax code will grow. Liberals are militarized for fighting “wars” against women, rights,etc, so we speak out against the war against religion. The left is the cultural aggressor and needs to be painted as such. The unintended consequences are a lot less reactionary than secession, but secession should not be dismissed but used as a deterrent to unconstitutional behavior and bullying. Fly the flag at half staff.
Is monogamy doomed? When SCOTUS struck down the anti-sodomy laws in Lawrence v. Texas (2003), those who saw this as a harbinger of SSM were scorned for trotting out the “parade of horribles” argument. Now? Are there any living arrangements among consenting (and loving and committed and autonomous and dignified) adults that Substantive Due Process and the Equal Protection Clause will not prevent the States from forbidding or otherwise regulating?
Is it time to start reading the Anti-Federalist Papers?
Why not. It only took Luke a year.
Even as a supporter of SSM, I believe that the Court’s decision was wrong. In fact, I believe that the whole concept of substantive due process is wrong, and serves as nothing more than an opportunity for the Court to act as a super-legislature adopting whatever policy positions it thinks are “really important.”
And yet I cannot help but suspect that if the Court had held that SSM was UNconstitutional, and that states were prohibited from recognizing SSM, there would be many opponents of SSM who would be celebrating in the streets, and that much of the sober talk about federalism and the democratic process would be sorely absent from Ricochet.
I think you’re wrong. We would have been quietly relieved and gearing up for the next battle. Now we’re disappointed though not surprised, yet galvanized and gearing up for the next battle.
I agree. Except for those of us who think through the issues, for most folks the issue was SSM, yes or no. The process by which the “yes” was achieved is not most folks concern, although it should be.
The strange thing is that SSM would no doubt have been a reality in all 50 states within the next 10 years anyway. The decision on constitutional rights would be irrelevant to the “yes or no” question, but much pain from the inevitable unintended consequences of the new constitutional right would be spared.
Yeah, it sure does seem that the 14th has become the Left’s new Commerce Clause.
I think you are wrong about that. That’s why it has been pushed like there was a fire somewhere. The left wanted to ram this through before anyone had time to think about it or see the results. But we’ll never know now. We just have to fight it as we have done with abortion, and that has been pretty darn successful, so I am very hopeful.
Maybe I’m misunderstanding, but it seems to me this misses the point. Whether states can recognize SSM under the Constitution wasn’t on table. The question was whether states must recognize SSM or could choose through their own democratic processes whether to recognize SSM or not.
(Sorry, I meant this as a reply to Larry 3435 ‘s comment at #20, but I’m new at this.)