Posted by: gmscan | July 30, 2015

Eulogy for the American Republic

Like you, I have been wrestling with the implications of the Supreme Court decision on same sex marriage, especially for Christians and the church. I will be posting some thoughts on that shortly.

But, knowing that very few people have the time or the patience to read 100 page court decisions, I wanted to share an excerpt of John Roberts’ dissenting opinion (below).

Roberts can be a terrific writer and thinker – when he wants to be (not so much on his two Obamacare opinions). And here he is at his best. Here he is calling out the 5-person majority on the Court for its total abrogation of the limited role of judges in our Republican form of government. This has nothing to do with religion, but everything to do with the principle of self-government. He says, “Those who founded our country would not recognize the majority’s conception of the judicial role.”

Essentially he is saying that the democratic process on this issue was working just fine, until the Court stepped in to abort it. It is far easier to destroy than to build, and here the Court has been willing to throw away the bedrock relationship between the people and their government in service of a trendy, faddish idea in social experimentation. Once gone, we may never get it back.

Obergefell –Chief Justice John Roberts Dissenting (pp. 24 – 27)

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante, at 7–9.

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description— and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same- sex marriage. They see voters carefully considering same- sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either re- versing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).

But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,            63 N. C. L. Rev. 375,   85–386(1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.



  1. Greg, how do you see “democracy” vis-a-vis “constitutional republic” in this controversy? I mean, if America is a true democracy, then the majority decide this and other issues, but if America is a constitutional republic, then the issue is “what’s constitutional?” and there is a role for the court to play in deciding that. The idea that the law does and should embody the thinking (and feeling) of the majority is not one I like, but it seems to be the way it is and has always been. Roberts recognizes that public sentiment was trending toward accepting same-sex “marriage”, and criticizes the court for running ahead of that process, but that begs the question I asked at the head of this comment, does it not?

    • Clearly, we are (or are supposed to be) a Constitutional Republic. But that must mean strict adherence to the Constitution. The American Constitution is designed to avoid rash actions. Hence the separation of powers, not only within the federal government but also between the central government and the states, with each element having strictly limited authority. In this case, I would argue that the federal government has no authority whatsoever over defining marriage. That is left entirely up to the states. Yes, the Court has a role, but it grossly violated its own (limited) role by imposing new social policy on the entire nation based on the whim of five people.

      • Agreed that the court exceeded its constitutional authority. Agreed that strict adherence to the Constitution is required, right and safe. Agreed that if any governmental voice should speak to the marriage issue it should be the states, not the Feds. I’m thinking that the regulation of marriage falls to two jurisdictions: the civil, the religious. Civil regulation belongs to whatever state the couple wants to reside in. Religious regulation belongs to whatever religious community the couple wants to identify with. If the Court had determined that, I would have applauded.

  2. Excellent analysis and commentary. The power moves on the left (whether media shaming, executive orders, judicial overreach,…) keep pushing the right to react, and then it ricochets in an unending loop of increasing soft-anarchy. Identity politics, in my opinion, has been devastatingly divisive. Whatever our President is or isn’t, he is no Lincoln. (Every impulse of Abe was to unite.) We are seriously and painfully broken on so many fronts. Only God…

  3. As Jimmy Carter pointed out just a few days ago in an interview, the real end of American Democracy came with 2010 Citizens United decision and the 2014 McCutcheon decisions that now allow unlimited and even secret campaign fund donations, including foreign donations, to run and dominate the political system from the hands of a very select super wealthy few. It suggests that right now the entire process is a sham.

    While the Right Wing fears the US is moving to the left, and the Left Wing cries that it is moving to the right, it has actually moved from the many to the super rich few.

    In Argentina they have a word for this, when someone draws your attention to something else in order to rob you. They call it simply “Distracción”

    We the people have been robbed.

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