Scorch the Earth!

by Bonchamps

I was wrong.

I predicted that, in the light of Anthony Kennedy’s reasonable arguments for state’s rights and popular sovereignty in Schuette v. Coalition to Defend Affirmative Action that he would do the same in Obergefell v. Hodges. Instead, he decided to eviscerate the Constitution in accordance with his own personal ideology.

Some quotes from the dissent before my brief thoughts below:

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465


The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?


Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997)

I could go on, but I will wrap it up with a quote from Jefferson:

You seem… to consider the judges as the ultimate arbiters of all constitutional questionsa very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. — Letter to William Charles Jarvis, emphasis mine

There can be no doubt that Jefferson’s worst fears have come true.

There is only one thing we can do in response to this abominable ruling: burn marriage to the ground. Every state in which voters adhere to natural law must mobilize to disestablish marriage. The effort is already underway in some states. It must continue. The proper solution to this problem all along was total disestablishment, and the replacement of marriage with civil unions for all, with the word “marriage” being stricken from the law books and relegated to religious institutions. This would have been the simple and easy way to satisfy the demand for equality. The unwillingness/inability for defenders of traditional marriage to recognize this is ultimately what led to this judicial disaster.

If this has one positive effect, let it be this: that conservative Christians never, ever, again in their lifetimes expect Caesar to be the guarantor of anything they hold dear. Yes, I blame our side. The other side is what it is: a juggernaut that believes it is the embodiment of Hegel’s world-spirit, “progressing” towards utopia (it will be a Soviet-style collapse, but whatever). Our side should have known better. It should have heeded the advice and warnings of libertarians, who have for the most part insisted for years that the state had no business in the marriage business. We could have gotten out of this mess with some dignity and composure, and instead we got this.

God help us.