Admittedly I am not a Constitutional scholar nor can I claim a smidgen of formal legal training, and yet it hardly takes a great legal mind to detect the odor of “outcome based” reasoning in the recent Obergefell v. Hodges. That decision by our Supreme Court summarily threw out an enduring concept of marriage that has nurtured human society for thousands of years. One need not have attended Harvard Law School to realize that this decision has very little to do with the Constitution and everything to do with five lawyers flagrantly imposing their own rigid progressive-liberal orthodoxy on a divided and unwilling populace.

Supreme Court justices are mandated to apply the Constitution, not their personal preference for the latest social engineering fads. Alas, this trend is not something new but simply one more example of the devious methodology used by the court to circumvent the Constitution in effect. That methodology can be traced directly back to the infamous Dred Scott decision some 158 years ago when Chief Justice Taney invented a new legal theory called “substantive due process.” Ironically, this ever useful device was first created not for social advancement but, quite the contrary, to protect and uphold the degrading practice of chattel slavery! In 1857 the Taney Court applied this extra-judicial technique to essentially impose slavery on every state and territory, including those 16 states where it had already been legislatively outlawed. Such judicial high-handedness, presumably intended to “settle the issue,” in fact only worked to inflame passions further, ultimately resulting in a Civil War which would claim over 600,000 American lives.

Fast forward to the present day where five successors of that corrupt Taney court have now mandated that 40 plus states where same-sex marriage has never been legislatively recognized must now sanction such unions and treat them as equal in every way to the traditional conjugal bond uniting a man and woman in matrimony. The court’s reasoning is that same-sex couples have ostensibly been wrongly denied “due process” under what amounts to the Court’s favorite, and ever obliging catch-all amendment, namely the Fourteenth.

It is immaterial here whether one agrees or disagrees with the outcome of that decision. What is at stake is an essential principle of our democratic constitutional government, namely the right of the people to decide the laws for themselves. Just like those states which had outlawed slavery by the will and action of the people, the legitimate voice of the people has once again been silenced by a panel of partisan jurists who would blithely deny citizens that most fundamental right: to decide important social questions, whether it be slavery or gay-marriage, for themselves through the political process. If a court can compel either the acceptance of slavery or gay-marriage, the rights of all citizens have been abrogated, not merely those who were on the losing side of the argument. Even slaveholders and gay couples lose in the end by sacrificing that valuable freedom of democratically deliberating public policy in return for an expedient judicial outcome which may prove to be as ephemeral as it is transitory, as many Southern slaveholders soon discovered to their chagrin.

So before deciding whether there has been any real “discrimination” lurking under the Court’s ever watchful eye, it is important to understand just what that chimeral “Due Process” clause which turns up in both the Fifth and Fourteenth Amendments really means. Is it a license for judges to continually thwart the democratic process? Decidedly not! Due Process simply means the fair and consistent rendering of the law with respect to individuals. In fact it relates primarily to following proper procedures ─ not to dictating the content of any law. Therefore, trying to impart “substance” to something purely “procedural,” such as “due process,” opens up a whole can of yummy worms. This is exactly the tactic Chief Justice Taney exploited in order to invalidate the constitutionally approved laws of Congress and 16 individual states back in 1857.

A good analogy might be baseball. In order to proceed smoothly a baseball game requires an umpire or two to insure that the game is played fairly. The umpire’s job is not to make up new rules for the game but to insure that the officially legislated rules are adhered to. Umpires are not permitted to make up substitute rules, for example, deciding that left handed batters ought to be allowed an extra strike or perhaps bringing the base pads ten feet further in because the field is muddy. In the same respect, the purpose of judges and courts is to umpire ─ not to act as quasi-legislators or even super-legislators. But that is precisely what the legal theory of “substantive due process” accomplishes. It extends to judges the power to legislate from the bench ─ essentially to change the rules in the middle of the game, and with no input from the designated rule makers. That is why it must be regarded as lawless.

As recently as 1986 the United States Supreme Court in Bowers v. Hardwick upheld a Georgia law criminalizing sodomy, reasoning that sodomy could not be considered a “fundamental right.” Yet only six years later in Planned Parenthood v. Casey Justice Kennedy shifts the whole logical ground regarding fundamental rights by soliloquizing in his majority opinion, “At the heart of liberty is the right to determine one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” His judicial rhapsodizing provided cover to uphold another infamous abuse of “substantive” due process, Roe v. Wade, which legalized abortion, again overriding the political legislative process. His judicial logic, as inane as it may sound to our untrained ears, was to have more far reaching effects. Yet who is being naïve here? How does one glean a “right” to privacy or even to determine one’s “concept of existence” from something so mundane as mere procedure? (First do A then B then C.)

Justice Kennedy’s rhetorical outburst in Casey about the right to determine one’s own concept of existence clearly paves the road to moral relativism, and so set the stage for a 2003 decision, Lawrence v. Texas, that completely reversed what the court had held in 1986, namely that engaging in sodomy was not a fundamental right. Now the Court suddenly discovered that it was a right in order to invalidate a Texas law against sodomy. Again the pet theory of “substantive” due process proved invaluable. Unable to demonstrate that the right to engage in homosexual conduct is “deeply rooted in this nation’s history and tradition,” which might have supported the Court’s revised position, the majority instead demurred arguing, “we think that our laws and traditions of the past half century are of more relevance here. These references show an emerging awareness that liberty gives substantial protection to persons in deciding how to conduct their private lives in matters pertaining to sex.”

In his dissent Justice Scalia notes that, “such an emerging awareness does not establish a fundamental right. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex:” prostitution, adult incest, adultery, obscenity, and child pornography.” He goes on to expose the pernicious nature of hiding behind “substantive” due process as a cover to formulate new constitutional rights. “Persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a state to criminalize homosexual acts… than I would forbid it to do so.

Justice Scalia then gets to the real larger issue involved in Lawrence. “At the end of its opinion ─ after having laid waste the foundations of our rational-basis jurisprudence ─ the Court says that the present case “does not involve whether government must give formal recognition to any union homosexual persons seek to enter.” Do not believe it… Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as recognition of marriage is concerned.”

Sure enough, just twelve years after uttering that prediction, Justice Scalia was vindicated. The court in Obergefell v. Hodges states clearly, “The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” Furthermore, “the right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection… The challenged laws burden the liberty of same-sex couples and they abridge the central precepts of equality.”

Is there no end to the newly discovered “rights” that the magic pick-axe of “substantive” due process is able to mine from the fertile vein of the Fourteenth Amendment? Apparently not. But of course it is all terribly illogical and wrong headed because it strips away the very function which lies at the existential core of legislating. Due process does not refer to the substance of a law but rather to its application in a given circumstance. Providing the legal substance inherent in laws is properly a function of legislators, not judges. Otherwise a baseball umpire ought to be able to declare a long fly ball hit to right field a home run because the ball surely went far enough to leave the park, had it only been hit to left field.

“That a “bare majority” of this Court is able to grant this wish (enshrining their own definition of marriage) wiping out with a stroke of the keyboard the results of the political process in over 30 states, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.” Justice Clarence Thomas

If a law substantially contradicts some fundamental right clearly enumerated in the Constitution it should be overturned on that basis alone, not because it offends the sensibilities of a panel of judges. In truth, there are no “rights to dignity, autonomy, or even a right to marry” enumerated in our Constitution and these rights necessarily had to be first manufactured before being so liberally extended. Justice Thomas puts it very well in his dissent. “In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” He further chastises the Court majority which “rejects the idea ─ captured in our Declaration of Independence ─ that human dignity is innate and suggests instead that it comes from the Government.”

The long trajectory of the theory of “substantive” due process from Dred Scott through the activist Warren Court and extending to the tortured logic of Roe v. Wade and Planned Parenthood v. Casey has once again guided its poison darts to the desired target in Obergefell v. Hodges. In the process, our American concept of self government is gradually being demolished by an oligopoly of judicial elites who offer endless lip service to the virtues of democracy and liberty. These days their siren song is fast becoming a hollow refrain.

In the words of Justice Scalia, “This practice of Constitutional revisionism by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the people of the most important liberty asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.” The systematic short-circuiting of established representative government is what makes the actions of this Court “lawless.” Under the Constitution policies are meant to be decided by the people through their representatives, not by judges.

Of course this latest decision will not settle the affair any more than Chief Justice Taney settled the issue of slavery in Dred Scott. If anything it has only opened a Pandora’s Box of new and ever more acrimonious litigation. Furthermore it puts those religious and free speech liberties which are explicitly guaranteed by the American Constitution clearly at risk. Denying the people their rightful prerogative to settle the issue through normal political means insures that this issue will only further polarize our nation in the manner of Roe v. Wade. Rather than settle the question the court has only placed it on the front burner, making it a catalyst for heightened social antagonism.

In the words of Chief Justice Roberts this decision will allow some to, “Celebrate the availability of new benefits. But don’t look to celebrate the Constitution. It had nothing to do with it.”
Francis J. Pierson
July, 2015