The Court and Same Sex Marriage: Legislator or Judge?

By Alessandro Cowley

The US Supreme Court’s decision of Obergefell v Hodges was an act of will, not legal judgment. The right it announced has no basis in the US Constitution, or precedence. Like Roe v Wade, it represents nothing but judicial activism – legislating from the bench. Justice Scalia summed it up best when he said: “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.”

The vital tenet that underpins our democracy is the Separation of Powers – the idea that power must not be concentrated into a single branch, that the Legislature ought not exercise judicial functions, and the Judiciary must be incorruptible and not turn into a quasi-legislative body. In Australia, like the U.S., and Canada, the Legislature is confined to creating law that the Constitution permits, and the Judiciary, as interpreter of the Constitution, ensures the Legislature and Executive do not overstep their Constitutional authority.

Unelected, activist judges who seek to push an agenda are a threat to our democracy, as any Court exercising legislative functions under the auspices of “liberty” or “Constitutional rights” is a violation of the fundamental principal of separation of powers. Generally, in a democracy, the power to make the law rests with those chosen representatives of the people to the extent that the Constitution permits. Accordingly, a politicised judiciary is a democratic threat, because it creates an avenue for important policy decisions that would never be achieved through the ballot box, to be achieved through litigation.

By 5-4 majority, in Obergefell v Hodges the Supreme Court decided that same sex marriage was a Constitutional right under the 14th amendment’s equal protection clause.

Since the 1990s, States throughout the U.S. held referendums that amended their Constitutions to uphold traditional marriage. From the time of ratification of the US Constitution in 1788, marriage has always been a State issue, up to State Legislatures, as the US Constitution, until last month, was silent on marriage. From 1996 till 2015, thirty-one States passed Constitutional amendments to restrict marriage to between one man and one woman, and until US v Windsor in 2013, only 13 States had legalised same sex marriage. As Justice Scalia foreshadowed at the time: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” The majority judgment in Obergefell, by Justice Kennedy started with the following words: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

As Justice Thomas contended, the majority is invoking the Constitution in the name of liberty that the framers would not have recognised, and to the detriment of the liberty they sought to protect. Removing from it the flowery rhetoric, the majority’s argument in Obergefell v Hodges is that the 14th amendment gives same-sex couples a fundamental right to marry because it will be good for them and for society. The question here is whether a Legislator or a Judge should make that decision should we cede issues of public policy to unelected, unaccountable lawyers, or our representatives, who are directly chosen by the people?

Probably in my favourite line of the dissenting judgments, Justice Scalia quips, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

The underlying rationale for the decision was the 14th amendment, ratified in 1868, a product of the Civil War. Its principal intent was ending slavery. In 1868 every State had marriage laws that upheld the traditional view, the States that ratified the 14th amendment would never have turned their minds to marriage – but, 147 years later, the Supreme Court uses a Civil War era amendment to overturn the will of 31 States of the Union. As Justice Scalia announced, “[W]e need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”

What Obergefell v Hodges sought to do, “was take from the People a question properly left to them”, as Justice Scalia contends, “with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” Chief Justice Roberts agreed, saying, “five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law”. Prior to being shut down by the Supreme Court, the public debate over same sex marriage in America represented democracy at its best – individuals argued and debated both sides, citizens listened and put the question to a vote. The Supreme Court ended the debate without even a thin veneer of law. As Justice Scalia warns, “Buried beneath the mummeries and straining-to-be -memorable passages of the opinion is a candid and startling assertion: 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.”

A Court is not a legislature, so whether same-sex marriage, is a good idea should be no concern to the US Supreme Court. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorised courts to exercise, in the words of Alexander Hamilton “neither force not will but merely judgment”. It is clear that the Supreme Court is no longer what the founders envisaged. It is a Court of ideology and politics, not a Court of law. It has shown through its jurisprudence of the last 50 years a willingness – no an eagerness, to pursue the goals of the Sexual Revolution. I accept that in Obergefell the majority spoke of the First Amendment and the protection of religious liberty – but when Judges can invent rights out of nothing, it is impossible for us to keep faith that First Amendment protections will apply to dissenters of same sex marriage in the years to come. Indeed, Chief Justice Roberts and Justice Samuel Alito explicitly warned religious traditionalists that this decision leaves them vulnerable. Justice Alito warns that Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and will be used to oppress the faithful “by those who are determined to stamp out every vestige of dissent.”

The scathing dissents of this decision provide the only consolidation that came out of the Case to conservatives and legal analysts genuinely concerned of this judicial overstep. Chief Justice Roberts remarked that: “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.” Justice Scalia was personal, “[W]hat really astounds is the hubris reflected in today’s judicial Putsch”, and “the opinion is couched in a style that is as pretentious as its content is egotistic.”

This is not an issue exclusive to the United States or same sex marriage, just earlier this year in Carter v Canada (AG), the Canadian Supreme Court held that rights to broad ranging notions of “life, liberty and security” and the right to equality under the Canadian Charter of Rights, constituted a right to physician assisted suicide. Surely, euthanasia is an issue of public policy that ought to be left to the democratic debate and the Legislature to decide, rather than unelected and unaccountable judges, who think they know better? When the judiciary redefine the meaning of common words, they are moving outside the realm of activism and into an oligarchy, and I contend this is an undemocratic form of tyranny, a blatant abuse of judicial office and contemptuous disregard of the doctrine of separation of powers.

In Australia, we are fortunate, for unlike Canada or the United States, we do not have a Constitutionally entrench Bill of Rights. We have an incorruptible judiciary – when the ACT passed legislation that legalised same sex marriage, and the Commonwealth challenged the validity of the legislation, on the basis that it was inconsistent with the Marriage Act 1961 (Cth), unlike the Supreme Court’s judgment which commences with grand sweeping statements of liberty and freedom, the High Court, in a unanimous judgment commence with the words: “The only issue which this Court can decide is a legal issue”. However, the threat to democracy by the judiciary in our nation is not complete– activists are pushing for a Statutory Bill of Rights, which we as conservatives must oppose. Further, with a Constitutional Referendum on Indigenous Recognition in the preamble on the horizon, activists are seeking to include a Constitutional prohibition on racial discrimination. Personally, while I support the former, I oppose the latter, for fear that like the US and Canadian experiment have shown us, we could easily create a one right Bill of the Rights, and cede the authority of Parliament to define social policy to unelected judges. We have adequate protections with the Racial Discrimination Act, and it need not be constitutionally entrenched.

The framers of the US Constitution did not anticipate judicial tyranny on the scale seen in Obergefell. The Court’s hubris and thirst for power has reached unprecedented levels, and the disease of liberal judicial activism has truly infected the judiciary. As Rod Dreher argued, “Obergefell is a sign of the times, for those with eyes to see. This isn’t the view of wild-eyed prophets wearing animal skins and shouting in the desert. It is the view of four Supreme Court justices, in effect declaring from the bench the decline and fall of the traditional American social, political, and legal order.”

We certainly live in interesting times.

Alessandro is a fourth year law student and has served as the Vice President of the Conservative Club and the President of the Catholic Society.

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