BREAKING: Supremes guarantee national right to gay marriage in 5-4 ruling

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Published by: Dan Calabrese on Friday June 26th, 2015

As expected.

Just coming in, but we know it's a 5-4 ruling, and it's not limited in scope. Gay marriage is now the law in all 50 states - not because state legislators or voters approved it; in fact, many did just the opposite - but because the Supreme Court has invented a new right every bit as blatantly as it did in Roe v. Wade.

Justice Anthony Kennedy, as expected, was the deciding vote and wrote the majority opinion. No state now has the right to define what marriage is.

Here is a passage from the dissent, written by Chief Justice Roberts:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept

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 desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

Justice Scalia wrote a separate dissent. Here is some of it:

We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

For Christians troubled by this ruling because it gives legal credence to something that is biblically detestable in the eyes of God (and I am one of those), we need to buck up and understand something. Secular legal institutions were never going to be our champions. It's right for legislators to use biblical principles as a basis for their decisions, but given the direction of the culture, we're not going to get God's principles codified into civil law.

What Christians can still do, even given this massive legal defeat, is minister to gay people and show them the way to Christ and to deliverance from urges of the flesh that separate them from God.

Then again, the left will try to pass laws to stop that too. They're already forcing us to choose between participating in gay weddings or losing our businesses, and Obama wants to ban anyone from helping a person to escape homosexuality.

This is a tough fight and today it got a lot tougher. Do me a favor, though. Stop whining about "persecution of Christians." The problem here is not that it bothers us. The problem is that rebellion against God just got the legal support of the U.S. Supreme Court. We've got work to do, and the political class is not on our side. Best to understand that and gird up accordingly.

Dan just served as editor of a fantastic book by Katherine Jeffries about a secret vigilante organization. It's called Stranglehold and you can download it here. Follow all of Dan's work by liking his page on Facebook.