What would you think if the Court had decided the opposite? That is, if the Court had held that same sex marriage is unconstitutional, so that all state laws approving such unions are void, and all court decisions establishing same sex marriage are overruled. Would you then think it appropriate for “five lawyers,” as Chief Justice Roberts put it, to remove this issue from the democratic process and purport to resolve it by judicial fiat?
I am pretty sure you wouldn’t. I am pretty sure that in the face of such a ruling, you would howl with outrage and insist that the issue of same sex marriage be determined by democratic processes.
I realize that hardly anyone on the Left acknowledges any obligation to be consistent. But logically, the issue of same sex marriage either is governed by the Constitution, or it isn’t. The truth is that the Constitution is silent with regard to marriage, which has always been a matter of state law. To assert that the Constitution mandates gay marriage is as outrageous as to assert that it prohibits gay marriage. It does neither.
Liberals have become accustomed to the idea that Supreme Court decisions can help, but never hurt, their causes. But that isn’t true. At one time, the Court held that there is a fundamental constitutional right to own slaves, which Congress could not limit in the territories. (The justices in the Dred Scott majority were loyal Democrats, doing their party’s bidding much like today’s progressives.) Subsequently, the Court held that wage and hour laws were unconstitutional because they infringed the fundamental right of contract. Both of those cases were decided on precisely the same theory as the Court’s gay marriage decision, i.e., substantive due process.
It is disheartening to see the almost universal acclaim received by a decision that is, in terms of process, a raw and unconstitutional usurpation of power. One would think that there should be many Americans who care about the Constitution, regardless of their views on gay marriage. But that does not appear to be the case.