I was wrong.
Perhaps I was naive, but I really believed Justice Kennedy when he wrote in the Windsor decision, “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” I thought he would say the states have a right to determine whether same-sex marriage will be legal or illegal within their respective jurisdictions.
But instead, the Court used an illegitimate means to reach an unconstitutional result that allows invalid unions for the perpetration of immoral conduct.
Illegitimate means? Two justices who by all reasonable standards should have recused participated in this ruling. Both Justice Ginsburg and Justice Kagan had previously performed same-sex weddings, and Justice Ginsburg even performed a same-sex wedding after the oral arguments took place and made statements to the effect that same-sex marriage is a constitutional right. She clearly had her mind made up and could not consider this case objectively, and therefore she should have recused. In my 45-year legal career, I’ve never seen a case in which the facts more clearly called for recusal, and yet Justices Kagan and Ginsburg refused to recuse. If they had both recused, the vote would have been 4-3 to uphold the Sixth Circuit and the same-sex marriage laws of Michigan, Ohio, Kentucky, and Tennessee. If only Justice Ginsburg had recused, the vote would have been 4-4, which would have affirmed the Sixth Circuit decision. Justice Scalia said in dissent, fn 22, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” Because of these illegitimate means for putting together a five-vote majority, the decision deserves neither respect nor recognition.
Unconstitutional result? Nothing in the Constitution either explicitly or implicitly recognizes a right to same-sex marriage. The key language of Justice Kennedy’s opinion says, “The generations that wrote and ratified the Bill of Rights and the Fourteenth 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 rights of all persons to enjoy liberty as we learn its meaning.” That in itself would be dangerous, but as Justice Scalia noted in dissent, “The ‘we,’ needless to say, is the nine of us” – a majority vote of nine lawyers, unelected and holding office virtually for life. The effect of Justice Kennedy’s ruling is that federal judges are no longer bound by the plain wording of the Constitution as understood and intended by its Framers, but rather are free to make the words of the Constitution mean anything they want them to mean. Thomas Jefferson wrote in the Kentucky Resolves, “In questions of power, then, let no more be said of confidence in man, but bind him down from mischief with the chains of the Constitution.” The purpose of the Constitution was to define and restrain government power, not to allow federal judges to roam at large in the trackless fields of their own imaginations.
Invalid unions? From the beginning of time, the laws of nature and of nature’s God have been very clear: marriage is between one man and one woman. Genesis chapters 1 and 2 tell us that God established marriage between a man and a woman, and the laws and customs of nearly every society past and present have recognized only male/female unions as marriages. I question whether any agency of human government has the authority to re-define an institution established by God. But at the very least, such social upheaval should be brought about by the people through their elected representatives, not by the 5-4 vote of an unelected court.
Immoral conduct? The Bible forbids homosexual conduct, as have the laws of nearly all societies throughout history. God’s moral law does not change with time and place, with opinion polls, or even with court decisions. Isaiah 5:20: “Woe unto them that call evil good, and good evil.”
Because the Obergefell decision is an illegitimate means of reaching an unconstitutional result to establish invalid unions for the perpetration of immoral conduct, this decision should not be accorded the force and effect of law. Other branches and levels of government should interpose on behalf of the people they represent to preserve for their people the right and power to define marriage in accord with the laws of nature and of nature’s God. This should be done by legal means if possible, but if necessary, “We must obey God rather than men” (Acts 5:29).
Col. John Eidsmoe is Senior Counsel and Resident Scholar at the Foundation for Moral Law (www.morallaw.org) and national Lutherans For Life board member.