Home
/
RELIGION & LIBERTY ONLINE
/
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
Dec 6, 2025 10:12 PM

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
Verse of the Day
  Romans 8:6-8 In-Context   4 in order that the righteous requirement of the law might be fully met in us, who do not live according to the flesh but according to the Spirit.   5 Those who live according to the flesh have their minds set on what the flesh desires; but those who live in accordance with the Spirit have their...
Verse of the Day
  Jeremiah 32:17 In-Context   15 For this is what the Lord Almighty, the God of Israel, says: Houses, fields and vineyards will again be bought in this land.'   16 After I had given the deed of purchase to Baruch son of Neriah, I prayed to the Lord:   17 Ah, Sovereign Lord, you have made the heavens and the earth by your...
Verse of the Day
  Commentary on Today's Verse   Commentary on 1 Chronicles 16:7-36   (Read 1 Chronicles 16:7-36)   Let God be glorified in our praises. Let others be edified and taught, that strangers to him may be led to adore him. Let us ourselves triumph and trust in God. Those that give glory to God's name are allowed to glory in it. Let the everlasting...
Verse of the Day
  Commentary on Today's Verse   Commentary on Titus 1:5-9   (Read Titus 1:5-9)   The character and qualification of pastors, here called elders and bishops, agree with what the apostle wrote to Timothy. Being such bishops and overseers of the flock, to be examples to them, and God's stewards to take care of the affairs of his household, there is great reason that...
Verse of the Day
  Isaiah 9:6 In-Context   4 For as in the day of Midian's defeat, you have shattered the yoke that burdens them, the bar across their shoulders, the rod of their oppressor.   5 Every warrior's boot used in battle and every garment rolled in blood will be destined for burning, will be fuel for the fire.   6 For to us a child...
Verse of the Day
  Commentary on Today's Verse   Commentary on Psalm 82:1-5   (Read Psalm 82:1-5)   Magistrates are the mighty in authority for the public good. Magistrates are the ministers of God's providence, for keeping up order and peace, and particularly in punishing evil-doers, and protecting those that do well. Good princes and good judges, who mean well, are under Divine direction; and bad ones,...
Verse of the Day
  Luke 12:2-3 In-Context   1 Meanwhile, when a crowd of many thousands had gathered, so that they were trampling on one another, Jesus began to speak first to his disciples, saying: BeOr speak to his disciples, saying: First of all, beon your guard against the yeast of the Pharisees, which is hypocrisy.   2 There is nothing concealed that will not be...
Verse of the Day
  Commentary on Today's Verse   Commentary on Mark 8:34-38   (Read Mark 8:34-38)   Frequent notice is taken of the great flocking there was to Christ for help in various cases. All are concerned to know this, if they expect him to heal their souls. They must not indulge the ease of the body. As the happiness of heaven with Christ, is enough...
Verse of the Day
  Commentary on Today's Verse   Commentary on Philippians 2:1-4   (Read Philippians 2:1-4)   Here are further exhortations to Christian duties; to like-mindedness and lowly-mindedness, according to the example of the Lord Jesus. Kindness is the law of Christ's kingdom, the lesson of his school, the livery of his family. Several motives to brotherly love are mentioned. If you expect or experience the...
Verse of the Day
  Commentary on Today's Verse   Commentary on Psalm 57:7-11   (Read Psalm 57:7-11)   By lively faith, David's prayers and complaints are at once turned into praises. His heart is fixed; it is prepared for every event, being stayed upon God. If by the grace of God we are brought into this even, composed frame of mind, we have great reason to be...
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved