Marriage and the Constitution: What the Court Said and Why It Got It Wrong


This is the best article-length critique of the Supreme Court’s Obergefell v. Hodges decision I have read.

The Supreme Court’s ruling in Obergefell v. Hodges is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of a man and a woman. The ruling is as clear an example of judicial activism as we’ve had in a generation. Nothing in the Constitution justified the redefinition of marriage by judges. The Court simply imposed its judgment about a policy matter that the Constitution left to the American people and their elected representatives. In doing so, it got marriage and the Constitution wrong, just as it had gotten abortion and the Constitution wrong in Roe v. Wade.

The question before the Supreme Court in Obergefell was not whether a male-female marriage policy is the best or whether government-recognized same-sex marriage is better, but only whether anything in the Constitution specifically took away the power of the people to choose their marriage policy. Yet the Court spoke almost exclusively about its “new insights” into marriage, and was virtually silent on the Constitution. That’s because it had no choice. Our Constitution is itself silent on what marriage is; We the People retain the authority to make marriage policy.

Marriage and the Constitution: What the Court Said and Why It Got It Wrong.

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