On June 26, 2015, the late Supreme Court Justice Antonin Scalia wrote one of the most prescient and troubling legal opinions of his career. A year later, it is time for the American people to act on its warnings.
Obergefell v. Hodges, the watershed ruling that stripped the rights of states to legally define marriage solely as the union of a man and a woman, was decided exactly one year ago today. The case was regarded by many not only as a death omen for the family unit in the United States, but also for the freedom to express and profess a truth that had been accepted by every civilization in human history until just a few years before Justice Kennedy’s majority opinion.
In the year since the ruling was issued, we’ve seen Kim Davis go to jail following a denial of religious accommodation regarding marriage licenses. We’ve seen governors bullied into vetoing basic First Amendment protections for their citizens, and, as Travis Weber indicates in an op-ed at the Daily Signal, we have seen not the only forced compliance of states and citizens with the opinion of the razor-thin majority, but the demand for public approval for same sex unions.
But even more alarming than these developments are the broader warnings offered by Scalia’s dissent in the case, first among them is the Court’s overriding “threat to American democracy.”
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” Scalia wrote last June. “This practice of Constitutional revision by an unelected committee of nine, always accompanied … by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence.”
Scalia then points to the period leading up to the court’s ruling as the true triumph of liberty, rather than the decision itself.
“Individuals on both sides of the issue passionately, but respectfully, attempted to persuade ther fellow citizens to accept their views,” he wrote. “Americans considered the arguments and put the question to a vote. The electorates of 11 states, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.”
“Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win.”
What Justice Scalia described was a true republic in action, at least until the judiciary put a stop to it. The greater problem is that, as devastating as the decision may yet prove to be for the religious liberty of people and institutions who still affirm a traditional, organic and conjugal understanding of marriage, the precedent set in this case and others by the federal judiciary point to a truth antithetical to our political and historical identity as Americans: we are being governed less and less by our own consent.
While conservatives and constitutionalists lauded the court’s decision in U.S. v. Texas earlier in the week, they would do well to remember two things:
1. The ruling itself was extremely narrow, meaning that similar cases, like Arizona Dream Act Coalition v. Brewer, in other circuits will likely still stand.
2. “Victories” like this are becoming fewer and further-between.
One such instance of judicial usurpation from January involves a case wherein the Supreme Court struck down sentencing laws that were debated and passed by several of the states, and up until the retroactive application of a separate case left the citizens of those states deprived of their right to decide upon the application of criminal sentences.
Another such case involves an illegal alien whose deportation was blocked after a ruling of the Federal Ninth Circuit Court redefined the term “good moral character,” thereby allowing for leniency and allowing him to stay. The United States Congress passed immigration laws which would have sent the offender home, until the federal judiciary simply re-interpreted the law, and invalidated the congressionally passed statute, despite its clear constitutionality.
But the primary issue that we see before us stems both philosophically and legally from the Obergefell decision itself. In April of this year, the City Council of Charlotte, North Carolina passed a restroom ordinance that the democratically elected governor and state legislature saw to be a potential threat to the freedom of private businesses and the security of vulnerable citizens. In response, the legislature passed and governor signed into law a measure that would have prohibited local governments in the state from infringing upon the rights and privacy of private citizens.
Cue the executive branch. In what must have been a land-speed record for such an issue, not only did a pack of cultural cronies descend upon the state with calls of discrimination, but the Department of Justice and the State simultaneously threw the issue to the courts for adjudication.
A few weeks later, in response to a related public school fiat issued by the Obama administration effectively mandating schools to adopt the kinds of policies that the duly elected officials were trying to avoid, 11 states filed lawsuits against the administration over the matter.
What this means is that, a year after the American people were robbed of the ability to discuss and pass corresponding legislation regarding the institution of marriage, they now stand to be stripped of the right to deliberate the very nature of man and woman, or of the protection of privacy and safety.
As disappointing as this is for anyone who wonders if we can still keep this republic, following Dr. Benjamin Franklin’s warning, it should come as little surprise to anyone who has been paying attention. In Stolen Sovereignty, CR Senior Editor Daniel Horowitz outlines in detail just the right of the American electorate to decide matters of vast importance like basic biology, immigration, criminal justice has already started eroding before our eyes, thanks to an out of control and activist-ridden judiciary.
While Obergefell was far from the cause of the greater disease in effect, it remains the most recent and visible symptom.
But there is a little-known constitutional trap door to escape the dungeon of judicial oligarchy. Congress has the power to strip the federal courts of their jurisdiction, relegate such issues to state courts, and break up the federal influence on these matters. Our cousins across the Atlantic made a similar move Thursday when they voted to reclaim the power of their vote from a bureaucratic oligarchy in Belgium. After decades of having laws dictated by a largely unaccountable body they decided it was time to demand their own self-rule. With Scalia’s prescient dissent fresh in mind, it is high time that Congress reclaim its authority and that the American electorate take back its own sovereignty. (For more from the author of “Antonin Scalia’s Gay Marriage Dissent Turns One Year Old” please click HERE)