‘Jaw-Dropping Judicial Supremacy’


In the landmark marriage decision in June 2013, the Supreme Court didn’t make same-sex marriage a constitutional right as the liberal media had hoped. But the Court did give the homosexuals what many believe is their number-one goal: ugly language to silence their critics.

GavelJustice Anthony Kennedy, writing for the majority in U.S. v. Windsor, which declared the Defense of Marriage Act (DOMA) unconstitutional, based the decision on what he claimed was in the minds of those who oppose same-sex marriage: their bigotry, their “animus” against gays. Kennedy tried to brand those who oppose same-sex marriage as a hate group, putting them in a category similar to those who irrationally discriminate against various minorities.

Justice Antonin Scalia, joined in his dissent by Justice Clarence Thomas, made clear that the Supreme Court had “no power to decide this case,” that “this case is about the power of our people to govern themselves,” and that the Court’s errors come from “the same diseased root: an exalted conception of the role of this institution in America.”

Scalia wrote that Kennedy’s marriage decision was a “jaw-dropping . . . assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”

Since Kennedy couldn’t show any authority for deciding this case, Justice Scalia wrote that Justice Kennedy resorted to “nonspecific hand-waving” and the accusations that the congressional authors of DOMA were motivated by a “bare . . . desire to harm a politically unpopular group,” and that “only those with hateful hearts could have voted ‘aye’ on this Act.” Kennedy launched a torrent of accusations: the supporters of DOMA acted with malice — with the “purpose to disparage and to injure” same-sex couples, to “demean,” to “impose inequality,” “to impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and even to “humiliate” their children.

Scalia said this marriage decision would have been unrecognizable to those who wrote our Constitution. They knew the dangers of “primary” power and that’s why they divided power into three branches of government.

The New York Times headlined its report with the bald-faced lie that the Court “Follows the Nation’s Lead.” Au contraire: the Court ignored the Nation’s lead. The Court rejected the majority vote of the people of 31 states, including our nation’s bluest state, California, and ignored the fact that the traditional definition of marriage is enshrined, either by statute or state constitution, in 38 states.

Scalia and Thomas concluded in their dissent: “We might have let the People decide.” But the supremacist justices didn’t. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.” This decision has greased the path for the gays to challenge every state constitutional provision and statute upholding traditional marriage.

It is wrong, unprecedented, and insulting to the American people for Supreme Court Justices to accuse those who defend traditional marriage as being motivated by such hate.

Let’s recall how Abe Lincoln responded in his First Inaugural Address to the Supreme Court’s historic mistake, the Dred Scott decision. The Court had upheld the right to own a slave, Dred Scott, as a constitutional property right, even when they traveled to Illinois, a free state. Lincoln said that the Court’s erroneous decision should be limited to that particular case and never allowed to become a precedent for other cases, with the hope that it may one day be overruled.

Then Lincoln warned that if we allow policy on vital questions to be irrevocably fixed by the Supreme Court, we will no longer be a self-governing people but merely subject to “that eminent tribunal.” Americans certainly do not want to be ruled by that eminent tribunal.

The Moral Liberal recommends: Phyllis Schlafly and Grassroots Conservatism: A Woman’s Crusade (Politics and Society in Twentieth-Century America)

Contributing Editor, Phyllis Schlafly, is the Founder and President of Eagle Forum, a national radio show host, and a best-selling author.

Used with the permission of Eagle Forum.