Home
/
RELIGION & LIBERTY ONLINE
/
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
The Same-Sex Marriage Decision: Ruling by Judicial Fiat
Mar 19, 2026 7:53 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
New teaching program aims to revive Catholic education
For the past decade, Catholic education has been on the decline. Data from the 2016-2017 National Catholic Education Association Report shows that since 2006, the number of Catholic schools has decreased by 14 percent and the number of students attending Catholic school has decreased by 17.6 percent. Perhaps Teach for Christ can help reverse this trend. The name may ring a bell, as it bears resemblance to the existing program Teach for America. However, Teach for Christ, which will be...
Brexit: From poultry to prosperity
An unusual debate – over chlorinated chickens, of all things – is showing how Brexit and free markets can lead the UK and the developing world to greater flourishing. The debate has been brewing for years. In the United States, chickens are decontaminated with chlorine. The EU banned spraying or washing poultry with chlorine in 1997, citing health concerns. Although these health concerns have since been put to rest, their lingering memory – and the quasi-immortality of government regulations –...
Evaluating Trump’s tax reforms
In April, the Trump administration provided a broad outline of proposed reforms, including simplifying tax brackets, eliminating the marriage penalty, and creating child care deductions. The National Catholic Register recently published an article on the reforms, focusing on its effect on the family. Rev. Robert Sirico, co-founder and president of the Acton Institute, provided his thoughts on Trump’s plan: “A refundable tax credit, instead of a direct subsidy from the government, is more in line with the principle of subsidiarity,”...
Reading ‘Democracy in America’ (Part 3): Tocqueville’s feudal assumptions
This is the third part in a series on how to read Alexis de Tocqueville’s Democracy in America. Read theintroduction and follow the entire series here. Prior to delving into the text of Alexis Tocqueville’s Democracy in America, it behooves us to get some historical context so that we can understand his observations, analyses, and conclusions. Context also helps us grasp the significance of Tocqueville’s project, allowing us to see through his eyes. Think about historical context like you might...
Maximizing profit under competition
Note: This is post #42 in a weekly video series on basic microeconomics. In petitive market, pany can’t control how much they charge for goods and services. So how do firms maximize profits when they don’t control prices? In this video by Marginal Revolution University, Alex Tabarrok defines profit, including how to calculate total revenue and total cost, and covers costs, variable costs, marginal revenue, and marginal cost. (If you find the pace of the videos too slow, I’d mend...
The political implications of bitcoin
Prior to the publication of John Maynard Keynes’ The General Theory of Employment, Interest, and Money, balanced budgets reflected the received wisdom for governments. By making the case for debt spending in times of recession (and the virtually ignored case for restricting spending in times of growth), Keynes gave political leaders a license to abandon the requirement of balance. Now, they could spend beyond their means and still claim to be responsible. Declining purchasing power over time attests to the...
The most effective way to reduce child poverty
A vital fact lies buried in the recent IFS study on e inequality: the most effective way to alleviate poverty. This was true even though the IFS study, and UK government statistics, don’t actually measure poverty but rather inequality. Maybe it’s best to say the IFS study contains the secret to reducing both phenomena. Whichever metric one uses, according to the IFS report the most effective way to reduce that number is through work. The UK government defines “poverty” as...
Radio Free Acton: Jim McGann on the world of think tanks; Upstream on Spiderman: Homecoming
This week on Radio Free Acton, we talk with Jim McGann (senior lecturer of International Studies at the Lauder Institute, director of the Think Tanks and Civil Societies Program and senior fellow, Fels Institute of Government at the University of Pennsylvania) about the world of think tanks – what they are, what they do well, and where they can improve their effectiveness. Then RFA Chief Cultural Correspondent Bruce Edward Walker joins the show to lead a discussion on the latest...
Review: A visually powerful tribute to The Dunkirk Spirit
In a new blockbuster film, director Christopher Nolan faithfully captures for the big screen the frantic chaos and desperation of the Allied forces at Dunkirk in 1940. It is another vivid reminder that, as so many throughout history have reminded us, “War is hell.” Those who know their history understand that on the French beaches of the Strait of Dover, the Allied forces are thrown once again into another world conflict, this time to protect Western freedom and its democratic...
Finding ‘the lost tools of learning’
“If you were to read Dorothy Sayers’ The Lost Tools of Learning and thereafter read the curriculum of Veritas Classical Academy,” says Elizabeth Yeh in this week’s Acton Commentary, “you would find that the “lost tools” have been found in the small town of Marietta, Ohio.” The curriculum at Veritas is based on the Trivium. In her book, novelist and essayist Sayers explains that the genius of the Trivium is that it coincides with the natural stages of a child’s...
Related Classification
Copyright 2023-2026 - www.mreligion.com All Rights Reserved