The New York Times editorial said the Supreme Court’s gay marriage ruling “fits comfortably within the arc of American legal history.”
The editorial continued, “As Justice Kennedy explained, the Constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness. In that service, the court itself ‘has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.’”
The decision may fit in the arc of changes in attitudes and politics, but it grasped never intended power for five of nine unelected justices.
Justice Atonin Scaliea called it a putsch.
The editorialists at The Wall Street Journal put it this way: “The revolution in mores about gay and lesbian participation in the institution of marriage is among the most dramatic cultural shifts in U.S. history. Justice Anthony Kennedy’s opinion in Obergefell v. Hodges is a declaration of social inclusion whose outcome is welcomed by ever-more Americans. The complication is that the Constitution is silent about marriage and social-policy preferences, which are supposed to be settled by the people and the political branches.”
Nevada voters approved a constitutional amendment banning gay marriage by a voted of 69.6 percent in 2000 and 67.1 percent in 2002. The 9th Circuit Court of Appeals in 2014 struck the amendment as unconstitutional. It is questionable whether it would pass today, if it were on the ballot.
The Washington Post editorial also mentioned changes in attitudes. “Yet the fact that it’s foreseeable to Mr. (Justice John) Roberts that same-sex marriage bans would fall, state by state, to popular pressure shows how far the country has come, and quickly. In states where lower courts had already ordered same-sex marriages to commence, the transition has been generally calm. We expect to see the same maturity and acceptance across the country now.”
The editorialists at Investor’s Business Daily also questioned the power of the court to do what it did. “Do five men and women believe they can rewrite traditions dating back thousands of years with a few strokes of their mighty pens?” they wrote.
“Apparently so. So much for our democracy.”
As I noted before in comments, the ruling opens a new chapter in the interpretation of the Free Exercise Clause of the First Amendment. WSJ also noted as much: “A better response — as practical politics and for civic comity — would be to support laws that protect the conscience rights of religious believers and faith-based institutions that do not honor same-sex marriages. The unfortunate truth is that the political left is rarely magnanimous in victory, and its activists may not be satisfied until the force of government stamps out private values and practices they find deplorable.”
Likewise IBD: “Justice Samuel Alito made plain that the decision ‘will be exploited by those who are determined to stamp out every vestige of dissent.’ Those who continue to believe gay marriage is wrong, he added, ‘will risk being labeled as bigots and treated as such by governments, employers and schools.'”
The five justices have opened a can of worms.
It will be interesting to see how the once libertarian-leaning Las Vegas newspaper opines on this topic, if it does.