In Obergefell, Did SCOTUS Create Non-Existent Constitutional Liberties?

Additionally, Chief Justice John Roberts makes the point in his dissent that “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.’”


By Georgiana Constantin l July 14, 2015

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Oral argument in Obergefell v. Hodges . Image Credit: Dana Verkouteren/AP

The Supreme Court of the United States, SCOTUS, ended its 2015 Term with one of its most controversial rulings in Obergefell v. Hodges, issued at end of session on Friday, June 26th, making same-sex marriage legal in all 50 States by a 5-4 vote. Legislatively, Americans in 11 States had already decided to expand the definition of marriage, raising the question as to whether it was necessary for the Court to decide for the remaining 39 States. Justice Anthony Kennedy delivered the Court’s opinion.

Dissenting, Justice Antonin Scalia firmly expressed his concern regarding the fact that the process by which this new definition of marriage came to be translated into law might have been one calling into question its constitutionality, describing it as revisionism. “So it is not of special importance to me what the law says about marriage. 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 stated emphatically.

Raising the raison d’etre of the united States, Justice Scalia brings into question what he sees as the impending danger of the people losing the freedom for which they fought to become a nation. The decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Scalia argues that the best way to reach a conclusion on same-sex marriage would, in fact, have been the process already started in the several States, that of putting the question through the democratic process.  “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.”  Scalia also emphasizes that the regulating of domestic relations had long been attributes exclusive to the States and observes that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

One can observe that his intention in saying this is not that of demeaning the importance of the Court, of which he himself is a part, or its role in the rule of law, but rather to stress that he sees this particular matter to be the business of quite a different democratic process which does not involve the Court. “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant,” he adds.

Moreover, Scalia remarks that “No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.” He concludes thusly because the majority held, “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we  learn its meaning.” (Emphasis added.) This “we,” Scalia notes, refers, in this case, to the Court. He remarks that the Fourteenth Amendment’s definition of liberty is interpreted according to the understanding of the Court rather than democratically by the people or through the State legislatures.

Scalia therefore warns, “This [Obergefell decision] is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government.”(Emphasis added.)

If one would analyze Justice Scalia’s dissent, which holds that “no social transformation [should take place] without representation,” they would find that it makes the case for the very idea of democracy, which literally means by the “consent of the governed,” as stated in the Declaration of Independence.

Justice Scalia is, in the end, making the case that this democratic process preceded by dialogue and perfectible through debate should have been the basis for deciding the marriage issue in the States, which ultimately comprised the united States of America. This way the people would have made their voices heard through the laws issued by each State rather than be subject to the decision of “a majority of the nine lawyers on the Supreme Court.”

Other Supreme Court Justices have argued against the decision, again, not on the grounds of the ideal it supported, but rather because of its conflicting with the Constitution.

Justice Clarence Thomas, for instance, notes that the petitioners were not asking the Court to order the States to put an end to certain actions which were performed against them, but were instead asking for governmental entitlements, “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.” He also observes that “[t]hey ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation.”

Moreover, Justice Thomas underscores that “the Government cannot bestow dignity” and so granting same-sex couples the right to marry cannot be looked at as them being granted dignity. For, in what democratic country can one claim that their dignity was granted to them by their government?

Additionally, Chief Justice John Roberts makes the point in his dissent that “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.’”

Ultimately, he concludes, “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. 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. ”

Yet, one cannot ignore the way in which this verdict was reached. They can, however, wonder whether or not this whole process, in fact, relinquishes certain rights in order to gain others.

Many argue that the original idea of the Separation of Church and State, that is to say, the freedom of the Church from the State, is now also under threat, since pastors and businesses might be forced to partake in actions which violate their liberty of conscience, while religious establishments might lose their tax-exempt status if they do not forsake the idea of religious freedom.

So, should specifically held constitutional rights as religious liberty and the right to free speech, as protected under the First Amendment, the basis of modern democracy in America, be forsaken? Can any democracy survive once it has given up such rights? How should one react to the process through which the Obergefell decision was reached?


Georgiana Constantin is a law school graduate who has studied International, European and Romanian law at the Romanian-American University in Bucharest and received her Masters from the Nicolae Titulescu University in Bucharest. Ms. Constantin, who is based in Romania, is also a contributor to SFPPR News & Analysis.