On Obergefell

Recently, the Senate voted to pass the Respect for Marriage Act, an act which codifies same-sex marriage across the nation. 

The Act’s passage was, I believe, a great victory for this nation. There is no reason in my mind why they should not be protected under the law in the same manner as heterosexual couples. All people deserve to be able to marry a person they love regardless of their sex.

Now, let us look at why this Act was passed by the Senate. Largely, its passage was due to fears struck up by Associate Justice Clarence Thomas’ concurring opinion in the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, in which Thomas advocated for other cases of judicial activism to be struck down as was Roe v. Wade.

One of the cases Thomas wrote in reference to was Obergefell v. Hodges, a 2015 case in which the Supreme Court decided that the U.S. Constitution protects the right of same-sex couples to marry and requires all states to recognize these marriages.

This, on its surface, seems a decision of equal merit to the aforementioned Act. After all, it protected same-sex couples and their right to marry. Who could argue against that?

I, for one, could. This decision was a misuse of judicial power to guarantee a right that is found nowhere in the Constitution.

This right is that to marriage. The Constitution, as I am sure you know, grants several rights and liberties to the people of the United States. But try as one might, they will fail to find the right to marriage listed among those in the Constitution.

Now, I am not so foolhardy as to believe that the rights enumerated in the Constitution are all those that the people should have, quite the opposite; the Ninth Amendment spells the contrary out explicitly.

But these rights that are not written in the Constitution cannot be protected by it. Marriage, as I have mentioned, is one of them.

This does not mean that marriage cannot occur in the United States; such would be ridiculous. But if a state chooses not to legalize same-sex marriage, there is nothing in the Constitution that prevents them from doing so.

When the majority in Obergefell decided that the right to same-sex marriage was present in the Constitution, this was not based on a proven precedent, but rather a want of this right to be in the document. This desire was probably based on the social pressure placed on the court by advocates of same-sex marriage.

This, the making of judicial rulings based on societal and personal desires, is called judicial activism. It is, in my eyes, a very inappropriate ideology for judges to hold.

Probably the most important reason judicial activism is so unappealing is that most judges are unelected. The Justices of the Supreme Court are among these unelected.

Knowing this, consider: the debate around same-sex marriage, which was very much an ongoing one in 2015, was ended simply because five unelected Americans, who, might I add, serve for life and thus have no way to be held accountable for their decision, wanted same-sex marriage to be legal everywhere.

But, you may ask, what was the true harm done? Why should we care if these five judges were activist in this case if it accomplished the protection of thousands of same-sex couples across the nation?

The harm was to the judiciary itself. In the seventy-eighth of the Federalist Papers, Founding Father Alexander Hamilton wrote that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution”. 

With the power to make decisions based not on rights that have been shown to be present in the Constitution but based on what judges personally want, the judiciary quickly becomes the most dangerous branch of government.

So despite the admittedly positive outcomes that came out of the Court’s decision in this case, it is my firm belief that they made the wrong call in 2015, doing much harm to their institution of government.