The Same-Sex Marriage Decision:  Ruling by Judicial Fiat
Religion & Liberty Online

The Same-Sex Marriage Decision: Ruling by Judicial Fiat

The U.S. Supreme Court decided today that it is unconstitutional for a state to declare that marriage is only between one man and one woman. There is nothing in the Constitution that requires states to redefine marriage, but the Court decided that the Due Process Clause prohibits defining marriage as it has been defined for millennia just as it found a right to an abortion in the same Due Process Clause over 40 years ago.

The role of the Court is to rule on the merits of a case based on prior case law and the Constitution. The Court is not to legislate or find ways to make something legal that they personally believe is better for society. When the Court removes an issue from the realm of democracy and imposes its will based on what it perceives as the best public policy, there is a natural resentment that occurs from the people and states opposed to the ruling, particularly when such a ruling has no real basis in constitutional law.

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” writes Chief Justice John Roberts in his dissent. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

In Roe v. Wade, the Court determined that a right to privacy exists in the Due Process Clause which extends to a woman’s decision to have an abortion. Since then, society has engaged in a never-ending culture war over reproductive rights that has no end in sight. Prior to Roe, abortion was legal (at least to some degree) in 20 states and other states were in the process of considering abortion bills. Following the decision, abortion became legal in all 50 states, thus removing the issue from the people and their representatives and empowering the opinion of seven unelected judges that women have a constitutional right to terminate their pregnancies.

Prior to the decision today, same-sex couples had the legal right to marry in 37 states, and there were numerous referenda and pending legislative efforts to legalize it or further clarify rights. This is the democratic laboratory at work and laws passed through this process engender substantial public support. Because the ultimate decision on same-sex marriage was made in a courtroom and not in the public sphere, it will now be subject to a litany of legal challenges on potential limitations and exceptions to the decision. Additionally, the Court has now opened itself to a whole new line of cases involving the Free Exercise Clause, as religious people and organizations will claim that the forced recognition of same-sex marriage will violate their conscience and their First Amendment rights.

It is true that even if same-sex marriage were passed democratically in all 50 states there could still be legal challenges, but those cases could be handled appropriately on the state and local level, reinforcing the framework of federalism and states’ rights which are both explicitly allowed in the Constitution. In contrast, the Supreme Court dictating how a state can define marriage implicates a liberty issue by infringing on a state’s right to determine what is in the best interest of its citizens.

In Federalist No. 78, Alexander Hamilton wrote that the Judiciary would be the weakest of the three branches of government, but over time and with the expansion of the power of judicial review it has arguably become the strongest. The problem with this is that justices now routinely substitute their own personal judgment for what is equitable rather than deferring to the Constitution. What has resulted is unelected, unaccountable judges making policy decisions for the country.

Far from the intent of the Founders, this is neither democracy nor representative government; it is five judges imposing their desire for social change on the country by judicial fiat.

Supporters of same-sex marriage are quick to claim that the country was already on the path toward full legalization and that this decision merely sped up the process and pulled along the last few states that were living in denial. Since almost all polls support that notion, this seems to be a perfect example of why we should have let the democratic process play out. A scenario in which all 50 states legalize same-sex marriage by popular vote or legislative enactment is much stronger than one in which five justices stretch the meaning of a constitutional amendment to force all 50 states to comply with their solution to the marriage dilemma. Social change through “consent of the governed” is much more powerful than forced social change by judicial edict. This is exactly what happened with Roe v. Wade and over 40 years later the cultural toll on society continues.

Taking the issue of marriage away from the people and allowing five judges to redefine a static societal institution that has existed since the beginning of time will have substantial and long-standing consequences.

In 1787, Alexander Hamilton famously debated his anti-federalist rival Robert Yates (writing under the pseudonym “Brutus”) about Federalist No. 78 and the idea that judges would soon substitute their will for that of the Constitution. Hamilton claimed that to “avoid arbitrary discretion… [judges] should be bound by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”

Brutus responded that there was no mechanism to control them and that heavy judicial activism was inevitable because “[judges] are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

The effects or non-effects of the redefinition of marriage remain to be seen, but forging social change carries more weight when done democratically. Mandating societal and cultural policy by judicial fiat offends the notion of federalism and the Constitution, and increasing the already massive power of judges only encourages more unnecessary and inappropriate judicial intervention. Experts can disagree on who emerged victorious following the debates in 1787, but in 2015 when it comes to the modern role of the judiciary it is clear, Brutus won.

Zack Pruitt

Zack Pruitt holds a J.D. from Saint Louis University School of Law and is the Founder and General Editor of