Obergefell’s Assault on Liberty and Federalism

Despite what the newspaper headlines say, the U.S. Supreme Court’s ruling in Obergefell v. Hodges did not “legalize” same-sex marriage. It mandated same-sex marriage, something very different. States were previously free to recognize gay marriage, but now they are compelled to do so. From now on, it is illegal—unconstitutional—for any state not to issue marriage licenses to same-sex couples.

Many tout Obergefell as a victory for civil rights, but it is anything but. By turning same-sex marriage into a constitutional “right,” the Supreme Court has denied the people of all 50 states the most important civil right of all—the right to govern themselves. A mere decade into the political deliberation on same-sex marriage, the Court has taken the issue away from the voters. According to the narrow 5–4 majority, there has already been more than enough “legislation, litigation, and debate,” as Justice Anthony Kennedy put it.

The damage to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity,” “autonomy,” or any of the other amorphous phrases contained in Justice Anthony Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

By jettisoning federalism, the Court has put other civil liberties at risk. When the definition of marriage was a matter of state policy, voters and politicians could balance competing interest—particularly the rights of religious organizations that adhere to the traditional definition of marriage—based on local preferences. That kind of balancing is scarcely possible in federal courts, which are, as Chief Justice Roberts pointed out in his dissent, “blunt instruments when it comes to creating rights” because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.

You can read my longer analysis over at City Journal.

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