Many advocates of individual liberty and freedom are celebrating and championing the Supreme Court’s recent decision in Obergefell v. Hodges, which grants gay couples the same right as heterosexuals to get married and have that union recognized by the government.
A cataclysmic and hidden danger, however, lurks behind the Supreme Court’s decision on gay marriage—a danger that transcends religious considerations and threatens democracy, freedom, and liberty. This danger is the power of the federal government to overreach and enact its unrestrained will in defiance of the Constitution and to assume authoritarian power by judicial oversight.
In writing the majority opinion, Justice Anthony Kennedy voices the idea of the creation of a new “right.” He says,
“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”
The Constitution is the blueprint that guides the operation of the American government. If we ignore the Constitution, then indeed, words have no meaning and we reject the cornerstone of our democracy—in fact, democracy is dead. The Constitution is a political document and not a moral one. Even when the Constitution does lightly touch upon matters of morality, it is grounded in political affairs (e.g., treason, piracy, and counterfeiting). Hence, the Constitution does not mention marriage just as it does not mention adultery, selling drugs, Christianity, theft, righteousness, murder, humility, or lying. The same principle applies to the Bill of Rights—the first ten amendments to the Constitution—which prescribes certain political rights (e.g., free speech and religion, bearing arms, protection against unreasonable search and seizure, speedy trial) but makes no moral judgment on those rights. The Constitution, and therefore the federal government, does not permit an opinion on morality, nor does it allow a voice on marriage in general—the Constitution is totally silent on the issue of marriage.
Which brings me to the first point: even if the law were to establish a new right under Constitutional law, and even if that right were to address morality, such a right would require an amendment to the Constitution, and not a vote of nine unelected individuals. The Supreme Court violated its own constitutional function. It is supposed to mediate and negotiate those who cross the line or abut the edge of the law, not to create new freedoms never mentioned in the Constitution.
The Supreme Court was created under Article III of the Constitution. In a figurative sense, the Court’s purpose is to serve as referee on the field for other branches of government and to ensure players are not playing out of bounds or breaking the rules. The referee is not supposed to create new rules. And this is where the Court’s decision becomes so dangerous: those cheering the triumph of marriage equality have failed to realize that concealed within this triumph is the tacit and newly established power of the Court to reject the very document that gives it life and in turn create new rights and freedoms as it deems necessary. The question I have, then, is this: If the Court can so recklessly give freedom, can it not also take freedom away? If it rejects the Constitution, why then should we regard as sacrosanct those freedoms that the now “worthless” framework grants us all?
Well, what about African-Americans? The first thought that may come to mind is the issue of slavery and the denial of people of color their rights and how the Constitution “got it wrong,” necessitating a fix. The difference here is that people of color were denied their natural inalienable rights—life and liberty—and also deemed less than a full person. The Fourteenth Amendment, which contains the Equal Protection Clause, was thus written in the context of a world where non-white people were denied certain basic natural rights bestowed on all humankind. These are rights not assigned by a political authority but inherent in all human beings. Marriage is not a natural right, for one could, for example, live life deprived of a spouse. You cannot life live deprived of your personhood or your liberty.
Additionally, Justice Kennedy writes about, “four principles and traditions to be discussed that demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” These four principles are individual autonomy, the right to intimate association, safeguarding children and families, and the fact that marriage is a bedrock of American society.
First, individual autonomy and the freedom of association need no legislation or regulation. If you throw ten people on a deserted island, guess what they’re able to do without any bureaucrats? They are autonomous and can intimately associate. It is only when politicians begin to fiddle with things that a mess is created and the boundaries of those associations are now legally defined in the name of “liberty.” Second, it’s not the federal government’s job to safeguard children: that’s what parents are for. Third, the institution of marriage transcends America and every other nation on the face of the planet. At its core, marriage is not a political right or a political institution. It is a religious sacrament. And if you’re curious as to where marriage was first codified, open the Old Testament (Genesis 2:24). Marriage only became a unit under political control when governments realized the union was ripe for taxation. As I have written before in April 2013,
“Modern society arrived at the State-sanctioned concept of marriage in recent human history. Before the 1700s or so, marriage was solely a private matter and the religious sacrament was governed by the church. The State had no hand to play in the matter. So, if you lived in England in 1599, for example, in order to get married, John and Sue went to their local religious leader in the church, and then became man and wife.
So what happened? The answer is simple: taxes.
By the end of the 18th century, governments realized that when a married couple died, money and property (new arenas which were ripe for taxation) passed onto the next generation. Legal questions also arose if one parent had a child with another person (or a bastard), and the rightful legal heir came into question. Hence, the State gradually invaded this arena, and the result is that presently marriage is strictly a civil matter. This is why two people can be wed nowadays without ever going near a church—a quick visit to Vegas or a courthouse will suffice.”
What the Supreme Court’s decision essentially says is that it’s political power transcends the supernatural power of a religious sacrament that Biblically is a covenant made between a man and a woman with the oversight of God. If we agree that the government has the power to redefine what marriage is, then this is a tacit declaration that the government is more powerful than God, the Creator of the covenant. In Luke 4:9-12, Satan says something to Jesus similar to, “Show me you are God through a sign!” In such a scenario, God (Jesus) testing God would equate to setting God’s Word against God’s Word. But “You shall not put the Lord your God to the test” (Deut 6:16). In a very perverse twist, Satan tempts Jesus, Who is thereby asked to tempt God.
In the case of Obergefell v. Hodges, the plaintiffs asked the Supreme Court to judge God. The Justices agreed and found God’s Law to be unpopular and inadequate.
And although I never thought I would say this, I absolutely agree with Justice Antonin Scalia, who makes a clear and logical point in his dissent:
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. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, 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.
Indeed. Creating the right for same-sex couples to wed is just the symptom. The disease is governmental overreach in defiance of the Constitution. The freedom to govern ourselves does not involve the government telling us how to govern ourselves in the name of “equality” or “justice” or “morality”—because once the government does begin legislating morality from the highest court in the land, the forward march toward tyranny has also begun.
Dr. C. H. E. Sadaphal