I am hearing a lot, mostly on Facebook, about how the court overreached their power in issuing this decision.
I know it is probably crap, but does anyone have two good analyses which support and another which debunks that line of thought?
Roberts' dissent was based on, to borrow a term from Scalia, legal gobbledygook. He claims that it wasn't the court's place to decide this issue, when in fact judicial review is precisely what the court is there for!
Kennedy bases a part of his ruling on Due Process/dignity/liberty, which feels and sounds good, but the text of the Constitution that this part of his argument is based-upon is pretty fluffy. The strongest, most concrete legal argument in favor of marriage that he leans on is probably based on Equal Protection. The 14th Amendment's Equal Protection Clause was originally drafted with this language:
“No discrimination shall be made by any State, or by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”
Pretty narrow language. If that language had been retained, the 14th would've not applied to this case. But the language was changed into something incredibly powerful.
The committee drafting the Equal Protection Clause decided along the way to broaden the language so that its scope would be much, much wider, applying to ALL citizens:
“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”
That's pretty broad, plain language - and it was done so deliberately, so that it could be applied through the ages. Anyone claiming that the 14th Amendment is only supposed to apply to race is either lying or ignorant of the story behind the amendment's adoption. This one edit to the 14th Amendment is probably one of the biggest Constitutional edits in the history of our country.
Note that there are no asterisks there that say "except for the homos" or "except for marriage laws" or "except for when tradition dictates otherwise." Roberts basically takes it upon himself to insert these little exceptions into the Constitution. He legislates from the bench in creating these exceptions. It's not a judge's job to scribble exceptions in the Constitution's margins. If Roberts and his pals want those exceptions, the nation's founders have provided a very easy-to-understand amendment process to add such language.
Kennedy in his majority opinion can point to this plain language when making his ruling. It's clear, unambiguous language, and anyone claiming that Kennedy based his opinion on "nothing" or "not the Constitution" is (notice a pattern?) lying. Roberts.. not so much.
If your friends/family on Facebook have a problem with the concept of judicial review, I don't know what to tell them. It's one of the first things taught in Constitutional Law 101, and anyone disputing the court's ability to review and strike-down laws would be laughed out of class.
Here's a test to see if they're consistent in their concerns about judicial overreach: were they weeping or cheering when a key part of the Voting Rights Act was struck down in 2013?
