Home
/
RELIGION & LIBERTY ONLINE
/
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
Dec 13, 2025 3:59 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
The Intersection of Faith and Economic Systems
description
Bible Verse of the Day
  Romans 2:5-6 In-Context   3 So when you, a mere human being, pass judgment on them and yet do the same things, do you think you will escape God's judgment?   4 Or do you show contempt for the riches of his kindness, forbearance and patience, not realizing that God's kindness is intended to lead you to repentance?   5 But because of...
Bible Verse of the Day
  Daily Verse Reflection   Commentary on Galatians 6:6-11   (Read Galatians 6:6-11)   Many excuse themselves from the work of religion, though they may make a show, and profess it. They may impose upon others, yet they deceive themselves if they think to impose upon God, who knows their hearts as well as actions; and as he cannot be deceived, so he will...
Bible Verse of the Day
  John 7:38 In-Context   36 What did he mean when he said, 'You will look for me, but you will not find me,' and 'Where I am, you cannot come'?   37 On the last and greatest day of the festival, Jesus stood and said in a loud voice, Let anyone who is thirsty come to me and drink.   38 Whoever believes...
Bible Verse of the Day
  Luke 12:48 In-Context   46 The master of that servant will come on a day when he does not expect him and at an hour he is not aware of. He will cut him to pieces and assign him a place with the unbelievers.   47 The servant who knows the master's will and does not get ready or does not do...
Bible Verse of the Day
  Daily Verse Reflection   Commentary on Zechariah 4:1-7   (Read Zechariah 4:1-7)   The prophet's spirit was willing to attend, but the flesh was weak. We should beg of God that, whenever he speaks to us, he would awaken us, and we should then stir up ourselves. The church is a golden candlestick, or lamp-bearer, set up for enlightening this dark world, and...
Bible Verse of the Day
  Daily Verse Reflection   Commentary on Proverbs 10:18   (Read Proverbs 10:18)   He is especially a fool who thinks to hide anything from God; and malice is no better.   FAQs about the Daily Bible Verse   Why is reading a daily Bible verse important?   Reading a daily Bible verse helps you focus on God's word, offering spiritual guidance and encouragement for the day...
Bible Verse of the Day
  FAQs about the Daily Bible Verse   Why is reading a daily Bible verse important?   Reading a daily Bible verse helps you focus on God's word, offering spiritual guidance and encouragement for the day ahead.   How can I incorporate daily Bible reading into my routine?   Set aside a few moments each morning or evening to read and reflect on a verse....
Bible Verse of the Day
  Daily Verse Reflection   Chapter Contents   This psalm begins with expressions of devotion, which may be applied to Christ; but ends with such confidence of a resurrection, as must be applied to Christ, and to him only.   David flees to God's protection, with cheerful, believing confidence. Those who have avowed that the Lord is their Lord, should often put themselves in...
Bible Verse of the Day
  Daily Verse Reflection   Commentary on Mark 8:27-33   (Read Mark 8:27-33)   These things are written, that we may believe that Jesus is the Christ, the Son of God. These miracles of our Lord assure us that he was not conquered, but a Conqueror. Now the disciples are convinced that Jesus is the Christ; they may bear to hear of his sufferings,...
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved