The gay marriage ruling: Liberty affirmed
No state shall … deny to any person within its jurisdiction the equal protection of the laws.
That’s the Equal Protection Clause of the 14th Amendment on which the U.S. Supreme Court based its Friday decision to settle one of this nation’s most contentious contemporary debates.
In a 5-4 ruling, with swing Justice Anthony Kennedy joining the court’s four liberal brethren in providing the deciding vote and writing for the majority, the high court ruled that same-sex marriage is legal in all 50 states. And thus “the law” has been forced to evolve to mirror contemporary mores and folkways.
Lest there be any confusion, we do not support this decision as any kind of ode to “progressive” living constitutionalism. To the contrary, the ruling represents a welcome advance on the path to the right to be let alone, a decidedly libertarian philosophy.
Or as Fox News legal analyst and former New Jersey appellate Judge Andrew Napolitano put it, “The right to choose a mate does not require a permission slip from the government.”
Same-sex couples asked for not only equal treatment under the law but “for equal dignity in the eyes of the law,” Mr. Justice Kennedy wrote. “The Constitution grants them that right.” Period.
Conservative Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito each offered his own dissent.
Mr. Justice Roberts embarrassed himself by accusing the majority of legislating, which is exactly what he did in Thursday’s ObamaCare ruling.
Mr. Justice Scalia called the ruling “a threat to American democracy,” creating “‘liberties’ that the Constitution and its amendments neglected to mention.” Never mind the 14th Amendment, we suppose, or the Fifth.
Mr. Justice Thomas argued that the Constitution was predicated on the “simple truth” that “one’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the state.” But neither was the Constitution or the Bill of Rights adopted to deny one’s liberty through codified discrimination.
And Mr. Justice Alito, invoking the 10th Amendment, contended that, because of the conflicting laws regarding gay marriage among the states, the Constitution “leaves that question to be decided by the people of each state.” But is it not in the purview of the Supreme Court to settle such matters when the several states are in such stark disagreement, a protracted divisiveness that serves only to truncate and traduce liberty?
This is not to say that the high court’s affirmation of gay marriage is without peril. Indeed, how constitutionally protected religious objections are adjudicated surely will spawn more than a cottage industry of litigation from each side. And that path to justice could be a rough road.
But the bottom line remains this, as Justice Kennedy wrote:
“(T)he Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” But that “process” was doing just that. And not only was that morally reprehensible, it no longer was legally tenable.