Concerning the recent Supreme Court decision regarding same-sex marriage

Guest essay by Duane Lindberg

A major issue at stake in the recent Supreme Court decision in Obergefell v. Hodges is not only the Court’s redefinition of “marriage”, but also the unconstitutional, “super-legislative” process which the slim majority (five–four) used to reach its decision. This process has the earmarks of a bold disregard for history, tradition, and the Constitution. It is a flagrant departure from “judicial self-restraint” which is required.  Justices are empowered to interpret the law but not to make laws.

Therefore, the danger of a lawless court should be apparent to all Americans—both those who favor same-sex marriage and those who favor traditional. The prerogative to enact law belongs to the Congress and the States, not of the Judiciary.

Chief Justice Roberts together with Justices Scalia and Thomas, in their minority opinions, warn of this dangerous precedent which the majority of the High Court has set. Justice Roberts writes in his minority opinion:

Allowing  unelected federal judges to select which un-enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted “that judges ‘exercise the utmost care’ in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” (Roberts, p. 11)

He warns of the danger to the very “rule of law” which the majority’s “extravagant conception of judicial supremacy” (p.25) involves:

The majority’s understanding of due process…is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it.” (Roberts, p.22)

This warning by the Chief Justice echoes the caution expressed by Thomas Jefferson, third President of the United States:

The judges’ power is the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

He therefore warned:

To consider the judges as the ultimate arbiter of all constitutional questions is a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy…The Constitution has erected no such single tribunal. The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape to any form they please.

Thus, the Supreme Court’s decision on the same-sex marriage issue is a direct assault on the republican form of government that the Constitution guarantees to every State.

Also in his minority opinion, Justice Scalia points out this assault on American free institutions by the High Court:

I joined the Chief Justice’s opinion in full.   I write separately to call attention to this Court’s threat to American democracy. (Scalia, p.1)

In a sweeping rebuke of the Court’s majority on this issue, Justice Scalia declares:

The stuff contained in today’s opinion has to diminish the Court’s reputation for clear thinking and sober analysis…With each decision (like this same-sex marriage opinion)  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. (Scalia, p. 9)

In summary, the critical issue for the Nation regarding the Supreme Court’s opinion on same-sex marriage is that the majority’s decision has “nothing to do with it (the Constitution)” (Roberts, p. 29)

However, as Chief Justice Roberts points out, it has everything to do with the social opinions of the five Justices:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desired to remake society according to its own “new insight” into the nature of injustice. (Roberts, p. 3)

In the light of this flagrant violation of the Judicial Office and the threat this assertion of “judicial rule” poses for the rule of law, for States rights, and for American democratic government, we as citizens (on both sides of the marriage issue) must ask, “quo vadis?”—Where do we go now?

It seems necessary that the Congress assert its legislative authority and take steps to remind the High Court of its proper judicial function, namely, “to say what the law is, not what it should be.”

(Roberts, p. 2)   Perhaps this reprimand can best be communicated by impeaching the five offending Justices. The People through our elected officials can do this!

This Nation is at a point in time similar to the kairos (opportune moment) of its birth, when an unelected, unrepresentative power imposed its will on the American colonists.  Justice Scalia warns that the current danger to our republican form of government from an unelected unrepresentative ruling oligarchy of nine Justices is more serious than the situation the Colonists faced in 1776:

To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. (Scalia, p. 6)

The question must be asked and answered—How should this Nation react today to this violation of its democratic processes by a nine member “ruling oligarchy”?

The legal process of impeachment seems to be in order.


The original of this essay was published as a letter to the editor and circular email, July 15, 2015, by Duane Lindberg.

Rev Dr. Duane Lindberg PhD has over 50 years of pastoral ministry including as presiding bishop (emeritus) of the American Association of Lutheran Churches. Dr. Lindberg is author of the Nordskog Publishing title Kingdom of the Rings.

© 2015 Used by Permission

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