Home
/
RELIGION & LIBERTY ONLINE
/
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
Jan 15, 2026 8:43 AM

The U.S. Supreme Court decided today that it is unconstitutional for a state to declare that marriage is only between one man and one woman. There is nothing in the Constitution that requires states to redefine marriage, but the Court decided that the Due Process Clause prohibits defining marriage as it has been defined for millennia just as it found a right to an abortion in the same Due Process Clause over 40 years ago.

The role of the Court is to rule on the merits of a case based on prior case law and the Constitution. The Court is not to legislate or find ways to make something legal that they personally believe is better for society. When the Court removes an issue from the realm of democracy and imposes its will based on what it perceives as the best public policy, there is a natural resentment that occurs from the people and states opposed to the ruling, particularly when such a ruling has no real basis in constitutional law.

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” writes Chief Justice John Roberts in his dissent. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

In Roe v. Wade, the Court determined that a right to privacy exists in the Due Process Clause which extends to a woman’s decision to have an abortion. Since then, society has engaged in a never-ending culture war over reproductive rights that has no end in sight. Prior to Roe, abortion was legal (at least to some degree) in 20 states and other states were in the process of considering abortion bills. Following the decision, abortion became legal in all 50 states, thus removing the issue from the people and their representatives and empowering the opinion of seven unelected judges that women have a constitutional right to terminate their pregnancies.

Prior to the decision today, same-sex couples had the legal right to marry in 37 states, and there were numerous referenda and pending legislative efforts to legalize it or further clarify rights. This is the democratic laboratory at work and laws passed through this process engender substantial public support. Because the ultimate decision on same-sex marriage was made in a courtroom and not in the public sphere, it will now be subject to a litany of legal challenges on potential limitations and exceptions to the decision. Additionally, the Court has now opened itself to a whole new line of cases involving the Free Exercise Clause, as religious people and organizations will claim that the forced recognition of same-sex marriage will violate their conscience and their First Amendment rights.

It is true that even if same-sex marriage were passed democratically in all 50 states there could still be legal challenges, but those cases could be handled appropriately on the state and local level, reinforcing the framework of federalism and states’ rights which are both explicitly allowed in the Constitution. In contrast, the Supreme Court dictating how a state can define marriage implicates a liberty issue by infringing on a state’s right to determine what is in the best interest of its citizens.

In Federalist No. 78, Alexander Hamilton wrote that the Judiciary would be the weakest of the three branches of government, but over time and with the expansion of the power of judicial review it has arguably e the strongest. The problem with this is that justices now routinely substitute their own personal judgment for what is equitable rather than deferring to the Constitution. What has resulted is unelected, unaccountable judges making policy decisions for the country.

Far from the intent of the Founders, this is neither democracy nor representative government; it is five judges imposing their desire for social change on the country by judicial fiat.

Supporters of same-sex marriage are quick to claim that the country was already on the path toward full legalization and that this decision merely sped up the process and pulled along the last few states that were living in denial. Since almost all polls support that notion, this seems to be a perfect example of why we should have let the democratic process play out. A scenario in which all 50 states legalize same-sex marriage by popular vote or legislative enactment is much stronger than one in which five justices stretch the meaning of a constitutional amendment to force all 50 states ply with their solution to the marriage dilemma. Social change through “consent of the governed” is much more powerful than forced social change by judicial edict. This is exactly what happened with Roe v. Wade and over 40 years later the cultural toll on society continues.

Taking the issue of marriage away from the people and allowing five judges to redefine a static societal institution that has existed since the beginning of time will have substantial and long-standing consequences.

In 1787, Alexander Hamilton famously debated his anti-federalist rival Robert Yates (writing under the pseudonym “Brutus”) about Federalist No. 78 and the idea that judges would soon substitute their will for that of the Constitution. Hamilton claimed that to “avoid arbitrary discretion… [judges] should be bound by strict rules and precedents which serve to define and point out their duty in every particular case es before them.”

Brutus responded that there was no mechanism to control them and that heavy judicial activism was inevitable because “[judges] are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

The effects or non-effects of the redefinition of marriage remain to be seen, but forging social change carries more weight when done democratically. Mandating societal and cultural policy by judicial fiat offends the notion of federalism and the Constitution, and increasing the already massive power of judges only encourages more unnecessary and inappropriate judicial intervention. Experts can disagree on who emerged victorious following the debates in 1787, but in 2015 when es to the modern role of the judiciary it is clear, Brutus won.

Comments
Welcome to mreligion comments! Please keep conversations courteous and on-topic. To fosterproductive and respectful conversations, you may see comments from our Community Managers.
Sign up to post
Sort by
Show More Comments
RELIGION & LIBERTY ONLINE
Audio: What is Fasting?
About a week ago, I had the opportunity to be a guest on a radio show, The Ride Home with John & Kathy, on 101.5 WORD Radio, Pittsburgh. The interview was prompted by a little post titled “What is Fasting?” that I wrote for my personal blog, Everyday Asceticism. Of interest to PowerBlog readers, I was able to share the experience of my first Great Lent as an Orthodox Christian and how fasting transformed my perspective on abundance and consumerism....
How to Be a Better Guesstimater
Is the murder rate in the U.S. increasing or decreasing? What percentage of teen girls will give birth this year? What percentage of Americans are Christian or Muslim? What percentage are immigrants? If you guess wrong, you’re not alone. A new global survey, building on work in the UK last year for the Royal Statistical Society, finds that most people in the countries surveyed were wildly wrong. For instance, Americans guess wrong on each of the following questions: • What...
Does My Vote Even Matter?
Tomorrow millions of Americans will to the polls to cast their votes. And many other millions of Americans will not. Why bother voting when no individual vote makes a difference in any election or political decision? Why bother casting a vote that has no meaning? ​Micah Watson, director of the Center for Politics and Religion and associate professor of political science at Union University, provides an answer: The first thing to say about such an objection is that it’s a...
Audio: Ron Blue, Gerard Lameiro at the Acton Lecture Series
We’ve developed a bit of a backlog of audio to release over the course of the summer and fall, so today we begin the process of shortening that list by sharing some recent lectures from the 2014 Acton Lecture Series with you. On August 26, Acton was pleased to e Ron Blue to Grand Rapids for an address entitled “Persistent Generosity.”Ron has spent almost 50 years in the financial services world and the last 35 working almost exclusively with Christian...
Graceful Marketing in a Broken World
In his reflections on art mon grace, Abraham Kuyper affirmed that “theworld of beauty that does in fact exist can have originated nowhere else than in the creation of God.The world of beauty was thus conceived by God, determined by his decree, called into being by him,and is maintained by him.” Beauty is, in this deep sense, a creational good, and even though beauty is oftenpressed into the service of evil, beauty, like all good things, is a creation of...
United by Our Differences: Electoral Politics in an Age of Choice
I can choose between 350 channels on my television, 170 stations on my satellite radio, 10,000 books at my local bookstore, and millions of websites on the Internet. But on my ballot I have only two real choices. I can vote for a Democrat or I can vote for a Republican. In an age when even ice es in 31 flavors, having only two choices in electoral politics seems anachronistic. But the limitation has an ironically beneficial effect. For as...
What’s So ‘Awesome’ About Those Shareholder Activist Nuns?
For some, the one quality most important for those pursuing a religious vocation is awesomeness. It matters not whether clergy, nuns and other religious adhere to the actual doctrines of their faith, whether they advocate for the poor and powerless and spread the Word of God. Specifically, Jo Piazza, author of the absurdly titled If Nuns Ruled the World, authored an advertisement disguised as a Time opinion piece for her recently released book. The Vatican, according to Piazza, doesn’t fairly...
Vote For Thomas Jefferson Because John Adams Is A Blind, Bald, Crippled, Toothless Man
On Wednesday our country will celebrate one of our most cherished civic holidays: the beginning of the 18-month moratorium on political advertising. Although almost everyone hates such ads, every election season we are inundated with political advertising that mocks our intelligence and tests our credulity as politicians trash their opponents. But we can at least be thankful modern electioneering pared to the nineteenth century, downright polite. Even the rudest campaign ads of the 2014 midterm elections can’t match the nasty,...
Get Out And Vote
I live in a small town. Small enough that everyone votes in the same place. Small enough that you see at least half a dozen people you know when you vote at 7 a.m. As I was waiting for the people ahead of me to get their ballots, it struck me that I was truly seeing America. There were farmers, greasy-nailed mechanics, women in business attire. There were moms toting babies in car seats, and dads voting before heading into...
Mr. President: You Underestimate Americans
On Friday, President Obama was speaking at Rhode Island College. There was a lot of press given to his remarks about women who choose to stay at home to raise their children (it was a doofus remark), but I believe his entire speech was one in which he underestimates Americans. I know that many of you are working while you go to school. Some of you are helping support your parents or siblings. Well, yes, Mr. President, that’s what we...
Related Classification
Copyright 2023-2026 - www.mreligion.com All Rights Reserved