I had to take my time with my reaction to the Supreme Court’s
decision in Obergefell v.
Hodges (576 US __ [2015]),
because there were some comments and criticisms that led me to suspect it was
worse than I thought it would be. The suspicion was confirmed.
As expected, Associate Justice Anthony Kennedy authored the
decision, which is the latest in the logical progression from Lawrence
v. Texas (539 US 558 [2002])
through United States v.
Windsor (570 US __ [2013]), the
majority opinions of which Kennedy also wrote. Also as expected, Kennedy
premissed his opinion on the dubious concept of “substantive due process”, the
pre-eminent rationale for judicial legislation, and invoked the “equal
protection” clause without bothering to explain — as, indeed, none of his
decisions explain — how homosexuals qualify as a “protected class”. (Sorry, neither
“Well, duh!” nor “Because I said” is a
valid legal argument.)
In its way, Obergefell
was an even greater assertion of SCOTUS power than was Windsor. As
I explained at the time, Kennedy justified striking down the Defense of Marriage
Act (DOMA) by arguing that the right to define marriage lay with the States,
not explaining how the State’s authority to confer State benefits could rob the
Federal government of its authority to decide who gets Federal benefits. Now,
however, the States can exercise their authority only until the Court develops
a “better informed understanding” (slip
opinion at 19), at which time it can impose a school solution on everyone.
For Alexis de Tocqueville, the great French commentator on
early America, the great danger of democracy was “tyranny of the majority”;
i.e., the insufficiency of institutions to protect individual rights. The
problem for the last few decades has been exactly the opposite — aristocracy, the rise of a self-selected
élite willing to frustrate the democratic process, distort the plain meaning of
the Constitution, and violate long-standing political rights in order to impose
its superior mores. Obergefell
signals the triumph of that élite and the functional advent of limited
self-government.




