A Lawless Decision

The Supreme Court now says the Constitution protects same-sex ‘marriage.’ But its decision had nothing to do with the Constitution, and it set a dangerous precedent for America.
From the September 2015 Trumpet Print Edition

Five people just changed the definition of marriage in the United States of America. That is shocking.

On June 26, the decision by five Supreme Court justices in Obergefell v. Hodges halted national deliberation, usurped state powers, and exceeded the legal mandate of the nation’s highest court in order to make same-sex “marriage” the law in all 50 states.

In his dissent, Justice Antonin Scalia wrote this: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy” (emphasis added throughout).

Do you recognize the seriousness of what just happened?

According to the Constitution?

In their explanation of the legal reasoning underpinning their ruling, those five justices made the extraordinary assertion that the U.S. Constitution actually demanded it. Justice Anthony Kennedy wrote this in the majority opinion about same-sex couples: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Until just a few years ago, every society in human history has defined marriage—which actually is civilization’s oldest institution, not just “one of” the oldest—as a union between a man and a woman. Yet supposedly the U.S. Constitution—written over two and a quarter centuries ago—grants the right to a redefinition.

How so? The court majority found it in the “due process” clause of the 14th Amendment. This clause is being increasingly used to justify whatever lawyers want it to justify. Its history of being tortured, twisted, expanded and made more and more powerful can be traced back to 1965 with Griswold v. Connecticut. Thanks to America’s precedent-based legal system, lawyers have surrounded this fragment of the Bill of Rights in layers of legal language through court opinions: One judge stretches it to mean something—the next takes what he wrote and stretches it a bit further—and before you know it, you have five justices insisting that the Constitution requires them to redefine an institution that has meant the same thing for all of human history.

Here is how Justice Kennedy explained this in the majority opinion: “The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

By this reasoning, “the Constitution’s central protections” could include anything if we gain “new insight” to understand it to be so. We can define “freedom” however we want and claim that the Constitution protects it.

In truth, this reasoning has nothing to do with the Constitution. It pays no actual heed to the intent of the Bill of Rights’ authors. It simply represents judges doing what they want to do.

That is what happened in June: Five justices cast aside the law they are supposed to uphold and made a decision—now binding on 320 million Americans—based on their personal preferences.


When the ruling was announced, Chief Justice John Roberts did something he has never done during his nearly 10 years on the Supreme Court bench: He read aloud a summary of his dissent. This is what he said: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. … But do not celebrate the Constitution. It had nothing to do with it.”

This tells you a lot about America today. About the state of its judicial system and the hubris of its top judges. About how wrecked the republic is in terms of leaders’ respect for the Constitution’s definition of and limits to their powers, and how little concern Americans have about that.

This issue is also deeply revealing of America’s moral condition, though few will talk about it. Already the question of same-sex “marriage” was being debated and decided by states. Some few had rejected it, but the clear trend was more and more states redefining marriage.

We didn’t define marriage in the first place. It takes considerable arrogance and audacity to “redefine” it.

Still, 14 states had passed bans on same-sex “marriage.” These bans were legal efforts to preserve the suddenly vulnerable definition of marriage that has prevailed since man’s creation. On June 26, the Supreme Court labeled these bansunconstitutional and lawless.

Justice Kennedy said the court could no longer allow this issue to play out among the states; it had to take immediate action to subvert that process. Why? Not for any compelling legal reason. Kennedy wrote that the “cautious” approach was inappropriate because, for same-sex couples “and their children the childhood years will pass all too soon.”

Many people would argue that being raised by a homosexual couple is bad for children, but from a legal standpoint that is irrelevant. Whatever you believe about what is “good for children”—even if you are a Supreme Court justice—has nothing to do with whether the Supreme Court has authority to rule on it!

Force and Will

“This Court is not a legislature,” Justice Roberts wrote in his dissent. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”

The five judges in this majority are not exercising judgment; they are exercising force and will. They are forcing their view on every American, and they are exalting their own will above the law.

Thus, what was founded as a democratic republic is now a nation in which top judges make decisions based on their ideas about what is “best for children”—rather than on what the law says. A nation in which top judges believe their opinions trump states’ rights.

“For those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening,” Justice Roberts wrote. “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.’ 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?”

That is a superb question. Who do these judges think they are?

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government,” Scalia wrote.

“The substance of today’s decree is not of immense personal importance to me …. It is of overwhelming importance, however, who it is that rules me,” he continued. “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.”

How important is that to you? How concerned are you that five lawyers have just granted themselves the power to make these decisions for you?

In his dissent, Justice Clarence Thomas described how this decision walks back the fundamental principle of freedom that has protected Anglo-American peoples since it was first enshrined in the Magna Carta. “Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the state,” he wrote. “Today’s decision casts that truth aside.”

What do you think of the freedoms guaranteed by America’s laws? How much do you cherish these freedoms that have made America such a historically exceptional nation? How concerned are you that they have been stripped?

This ruling gives an extraordinary picture of just how far America has fallen from the rule of law.

The Trumpet’s editor in chief Gerald Flurry has warned about this trend—and the devastating consequences for this country—for 15 years. His booklet No Freedom Without Law, published in 2001, is more relevant than it has ever been.

Chapter 1, “What Is True Freedom?”, gives an important introduction into this subject. Chapter 2, “Justice and Our ‘Evolving Constitution,’” reveals the danger in exactly the kind of reasoning behind the Supreme Court’s June decision. And Chapter 3, “The War Against Law,” shows the wisdom in the Founders’ fight to enshrine the rule of law in the Constitution—and the lesson history has taught time and again about what happens when it gives way to tyranny.

“We are not prepared to die to defend our security, as we were in our past,” Mr. Flurry wrote. “This is the supreme sign that our will has been broken—and that our republic cannot stand.” You can read these chapters online, or order a free copy of this booklet.

Religious Freedom

Justice Thomas wrote that the majority “disregards the most plausible understanding of the ‘liberty’ protected by [the ‘due process’] clause, and distorts the principles on which this nation was founded. Its decision will have inestimable consequences for our Constitution and our society.”

Those consequences will be many, but let’s briefly consider just one. Justice Samuel Alito referred to it in his dissent: “The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

In other words, if you don’t agree with the court’s—and now the law’s—new definition of marriage, look out.

Yes, the Constitution guarantees freedom of religion. Justice Kennedy, President Barack Obama and others who celebrated this ruling also said some nice-sounding things about how some will disagree with it, yet we must protect freedom of religion. This was mere lip service. Don’t expect that constitutional right to protect you from anything. The Supreme Court just proved itself willing to exalt an implication in an interpretation of a clause in the 14th Amendment over the clearly stated First Amendment right to free exercise of religion, a principle on which this nation was founded.

Those who forced this law on Americans do not care about the person who disagrees as a matter of faith. They do not care if you oppose same-sex “marriage” out of conscience and religious belief. They don’t care if you get your definition of marriage from the Bible—from the God who created marriage. Because now they can come after you with the law.

In 2006, Anthony Picarello served as president and general counsel of the Becket Fund for Religious Liberty, a law firm that specializes in defending the free expression of all faiths. He was asked about the legal challenges to religious liberty that would arise from same-sex “marriage.” He said this: “This is going to affect every aspect of church-state relations. … [T]he church is surrounded on all sides by the state … church and state butt up against each other. The boundaries are usually peaceful, so it’s easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to createa point of conflict at every point around the perimeter.”

Every religious liberty scholar out there knows the Supreme Court’s ruling will put tremendous pressure on those who disagree with this redefinition of marriage. Activists are eager to ramp up their use of the courts to challenge, silence, compel and bully into submission anyone who puts up the slightest resistance to their cause.

Welcome to the new United States of America—ruled not by laws, but by men. Brace yourself. It won’t last long.