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In the Philadelphia Inquirer, my hometown paper, I critique the Supreme Court’s decisions on gay marriage and Obamacare. As a policy matter, I supported gay marriage, but the Constitution reserves the question for the voters of each state, not the judicial process. The weakness of the Court’s reasoning — is it Due Process? Is it Equal Protection? — suggests the decision’s political nature. Many may celebrate the result, but they should not welcome the steady erosion of democratic self-government.
Indeed, the political nature of Obergefell becomes readily apparent in the contradictory, vague logic of the majority opinion by Justice Anthony Kennedy. The holding fits within none of the established precedents governing the due-process and equal-protection clauses. Kennedy says marriage is a fundamental right, but he admits that American society had long understood that right to be only between a man and a woman. He suggests that the right to equality may require gay marriage, but gays do not receive the heightened constitutional protection reserved for racial and religious minorities. Kennedy could have recognized that gays should receive the same protections against discrimination as gender, but he could not because recognizing sexual orientation as a protected class might open up a Pandora’s box of new constitutional claims by every self-defined group.
Some will respond that society was moving in the direction of gay marriage anyway, and that the court was following the popular will. If that is the case, then the court should allow the political process to work. Justices have no special expertise in divining the wishes of the American people. Indeed, as Justice Antonin Scalia noted in dissent, the justices are a strange bunch. They mostly hail from the same regions of the country, went to the same schools, hold similar religious beliefs, and have the same professional backgrounds. An isolated, expert Supreme Court makes perfect sense when the Constitution defends minority rights against the oppressions of the majority, but it makes no sense when settling policy reserved for democratic politics.
In its disregard for process, the gay marriage case is of a piece with yesterday’s decision in King v. Burwell, where the Court believed it had the power to rewrite Obamacare to make the law work more effectively. Though tackling very different legal questions, both cases show a disregard for democracy and a judicial arrogation of power which the Constitution does not authorize.
While Chief Justice Roberts dissented in the gay marriage case today, he is no less the responsible for this state of affairs. He wrote the majority in King that rewrote Obamacare, and three years ago he saved Obamacare by rewriting it again to save it from constitutional challenge. His chief justiceship will not just be known for bailing out Obamacare and embracing gay marriage, but for its blessing of an imperial judiciary.