Since five human beings have announced their opinion with regard to same-sex marriage, should we all sit back and accept it as fact? The Supreme Court has been morally wrong before, most notably in 1973 and increasingly often in recent years.
Historically, the role of the Supreme Court has been to determine whether a law is constitutional. Through Marbury v. Madison (1803), the Court acquired the power of judicial review. Chief Justice John Roberts plainly stated on May 26, 2015, that the 5/4 opinion given in Obergefell v. Hodges “had nothing to do with” the Constitution.
The New Oxford American Dictionary defines the word “opinion” this way: “a view or judgment formed about something, not necessarily based on fact or knowledge.” With regard to law, the definition of opinion is: “a formal statement of reasons for a judgment given.” The majority opinion of these five Justices is not based on fact or knowledge in light of the Constitution.
The two questions before the Court in Obergefell v. Hodges and the related cases were these:
“Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”
Section one of the Fourteenth Amendment says:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If this passage were given on a reading comprehension test, a student would fail if he or she inferred that a reference to same-sex marriage or marriage of any kind existed in this text. The five Supremes who read same-sex marriage into the 14th Amendment should be relieved of their duties if they cannot read any better than this. Article III, Section I states: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” The five Justices’ lack of judicial restraint when faced with making a decision clearly outside the realm of their constitutional authority denotes pride and willful ignorance. Such disregard for their constitutional responsibilities qualifies as bad behavior.
Amendment 10 of the Constitution says:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
It is the job of Congress and state legislatures to make laws, not the Supreme Court. The Court can write all the opinions they want – that does not make them law. It is time for the Senate to put its power of “checks and balances” into effect on the Supreme Court and impeach Justices who are unable to control their insatiable urge to act as lawmakers by imposing their will on the States.