Last Friday, the US Supreme Court handed down its decision in Obergefell v Hodges, deciding by the predictably narrowest majority of 5-4 that same-sex couples had a constitutional right to marry, and that the right is protected under both the due process and equal protection clauses.
Eleven of the 50 states, as well as the District of Columbia, had already legislated to recognise the right of same-sex couples to marry. Justice Scalia in dissent observed, 'Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.'
There is much about the judicial reasoning in the case that would raise eyebrows among lawyers not used to the judicial activism of the liberal majority of the US Supreme Court which has long viewed the due process and equal protection clauses as a vehicle for legislating their preferred view on contested political and social issues. Writing for the five liberal judges, Justice Kennedy used poetic, but not very judicial, language when he commenced his judgment with this stirring call to judicial arms: 'The Constitution promises liberty to all within its reach.’
This was altogether too much for Justice Scalia in dissent. He wrote, 'The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.'
With pastoral sensitivity for same-sex marriage advocates and not wanting to rain on their parade, Chief Justice Roberts, also in dissent, retained a clear vision of what ought be the court’s limited role, observing, '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.’
Another of the four dissenters, Justice Alito highlighted the perils of a broad-brush judicial determination constitutionalising the right of same-sex marriage, short-circuiting the more nuanced debates which could go on in parliaments. He rightly highlighted that the decision will 'be used to vilify Americans who are unwilling to assent to the new orthodoxy,’ pointing out that the majority 'compares traditional marriage laws to laws that denied equal treatment for African-Americans and women’.
In short, it is regrettable that the Supreme Court took it upon itself to discover