The Same-Sex Marriage Case

For those who are interested, my quick reaction to yesterday’s ruling in Obergefell is in a symposium today at the First Things website. I discuss the Court’s reasoning and the implications for religious liberty. Here’s a snippet:

First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right.

For constitutional conservatives, this is very disheartening—whatever one’s views on the merits of same-sex marriage as a policy matter. After thirty years and more of trying assiduously to end, or at least limit, substantive due process, the doctrine still carries the day. As Justice Alito writes in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of discretion have failed. A lesson that some”—actually, anyone paying attention—“will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Incidentally, today’s ruling demonstrates again how important the 1987 defeat of Robert Bork was, and how much Senate Democrats gained in putting up such a fight against him. It was the defeat of Bork that led to the nomination of Anthony Kennedy.

You can read my analysis, along with the other contributions to the symposium, here.

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