Did anyone really believe that the Roberts/Kennedy court would rule any differently on the same sex marriage and ObamaCare cases? Is there any doubt that the Supreme Court not only reads election results but responds to opinion polling? Unfortunately, however adverse to the intent of the founding, this is the state of affairs to which we have evolved in the constitutional balance of powers among the three branches of government.
Let’s consider the two most prominent decisions in turn. First, the same sex marriage case, Obergefell v. Hodges, in which the Court held in a 5-4 majority that the 14th Amendment requires a state to license and recognize in all respects a marriage between two people of the same sex. This decision was no doubt reached substantially in response to polling that reflected the most sweeping transformation of public opinion in history and in spite of a relatively recently adopted federal defense of marriage act and significant voter disapproval of same sex marriage in several states.
It is interesting that all four dissenting justices wrote their own separate opinion. For example, Chief Justice John Roberts attacked the majority’s substantive due process argument [ a 19th century invention that gave us the right to abortion decision in Roe v. Wade ], writing “the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York………But this court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not what it should be.” Exactly on point in my judgment, but I wish Roberts had been as true to these principles in his two opinions which bailed out ObamaCare!
I also like Samuel Alito’s dissenting opinion, joined by Scalia and Thomas, which states, “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage……It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”
If there is some hope in this decision, it is in Justice Kennedy’s majority opinion, as follows: “……….it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection……”
And herein lies the rub, for already we have florists and bakers being charged and fined for refusing to participate in same-sex ceremonies and the left will not relent until the principle of religious freedom as understood in the Constitution has been completely gutted. And they will not stop there. Based on this decision, we can look for attacks on tax-exempt status of religious organizations, accreditation of religious colleges and schools, contracts with faith-based service organizations, etc., etc. This is the next phase of this battle and it will almost certainly be back in front of the Court.
In King v. Burwell, we have possibly an even more egregious violation of the clear intent of the law under review. Here, in a 6-3 decision, the Court upheld the outlay of premium tax credits to qualifying persons, whose health insurance is subject to the Patient Protection and Affordable Care Act, better known as ObamaCare, in all states, whether or not the state established an exchange for this purpose as clearly stated in the statute and as aggressively described by advocates on numerous occasions in promoting its adoption. Yet in the majority opinion written by Chief Justice Roberts [no surprise here], the Court found the disputed clause concerning the exchanges to be ambiguous, and that it ought to be interpreted in a manner “that is compatible with the rest of the law”. A total fabrication.
I always hate to say “I told you so”, but in March of this year I wrote “I hope I am wrong, but I’m betting that the politics will win out and that the Chief Justice will once again bail out this abomination in “compassionate” deference to the resulting impact of the elimination of the subsidy for ten or so million people and the damage he thinks will be inflicted on the institution of the Court”.
What should our response be to these landmark cave-ins? Well, I like Lincoln’s approach, who when responding to questions about the infamous 1857 Supreme Court decision in the Dred Scot decision on slavery, said this: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in person actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal”.
A society begins to disintegrate when people are no longer represented by the institutions that society was based upon. Pretty soon everyone thinks there is no law that applies to their vagaries and chaos ensues.
Clarification:
In my critique of Chief Justice Roberts’ dissent in Obergefell v. Hodges, it appears that I erroneously implied that his criticism of the tradition from the decision in Lochner v. New York in 1905, which he described as “unprincipled”, was correct. In fact, I agree with the decision reached in Lochner, which, contrary to his view, was grounded in the principles of the natural rights tradition of our founding as manifest in freedom of contract. The reliance on substantive due process is not always applicable and has in my opinion often been abused, but in the Lochner case was appropriate.
I hope and pray Obama will not have the opportunity to fill a vacancy on the Supreme Court before his term expires.