Today is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of one man and one woman. The U.S. Supreme Court got it wrong in King v. Burwell: It should not have mandated all 50 states to redefine marriage.
This is judicial activism: nothing in the Constitution requires the redefinition of marriage, and the court imposed its judgment about a policy matter that should be decided by the American people and their elected representatives.
The court summarized its ruling in this way, which highlights that they have redefined marriage, substituting their own opinion for that of the citizens:
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.
Manifest to five unelected judges that is. Not to the majority of American citizens who voted to define marriage correctly. As Chief Justice Roberts pointed out in dissent:
If you are among the many Americans, of whatever sexual orientation, who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
That’s exactly right. When it comes to the majority opinion, the Constitution “had nothing to do with it.”
Here are a few quotes From Scalia’s Scathing Dissent in King v. Burwell
“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means ‘established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as “inartful drafting.’ This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”
“More importantly, the Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. ‘If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.’ In the meantime, this Court ‘has no roving license … to disregard clear language simply on the view that … Congress ‘must have intended’ something broader.”
“Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state Exchanges.”
So, what can we do to stand up against this “unusual” interpretation? A good place to start would be the First Amendment Defense Act. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.
Another way would be to elect a strong President that will take us back to the rule of law and the practice of upholding the Constitution.