Phyllis Beveridge Nissila
This commentary is not for anyone looking to hop on an emotional roller coaster over the recent Supreme Court decision regarding the legality of same-sex marriage. Rather, it is a call to look at a much bigger and, I believe, more serious issue, for all of us, i.e., what just happened to the Law of the Land, a.k.a. the United States Constitution, in our Representative Republic, a.k.a. this nation “of the people, by the people, and for the people”. It isn’t the only ruling of late to do so, but one of the most highly-profiled and emotionally-charged.
This commentary is also about why all of us, whether pro, con, or neutral, should be very concerned .
In a nutshell:
I am among those who believe that for the SCOTUS, or Judicial Branch of the government, to usurp the right to make law (they are limited to judicial review for Constitutionality) which is really the role of the Legislative Branch of our government, or Congress , is to set a precedent that opens the door to rule no longer of, for, and by the people, as noted above, but to hand the process over to unelected judges who may rule for life (unless impeached) and who are appointed by politicians. Politicians, whether on the left, right, or middle who might have an intention other than to support the nation as founded and preserved to recent times.
Politicians who might, in fact, even want to transform this government into another kind of government altogether.
But whatever the reason, in effect, the process by which Americans have been privileged and protected since our inception–that of the right to representation—has been seriously damaged if not, as some believe, even destroyed by the means whereby this ruling came to be.
Such a ruling/law enacted by the SCOTUS also defies the right of the states to rule of their own accord (see also footnote 2). In other words, all those referendums grass-roots groups labor diligently to get on their states’ ballots, whatever their political persuasion, that are then passed by the voters of the state, could now be invalidated if the SCOTUS so deems.
But what about bad laws, or laws that are, in fact, not Constitutional?
There is already a protocol in place to override them (see also footnote 2). We enjoy the right in this nation to amend our Constitution and have done so numerous times. The separation of powers is also under-girded with checks and balances to address that possibility in the process, long before a bad law might be enacted.
So why the concern?
Because of the unintended (and some, no doubt, intended) consequences.
In short, I agree with those who argue the following possible consequences:
- The majority opinion opens the door wide, if not completely, to the destruction of representation of, by, and for the people.
- The opinion makes it possible, now, for any ruling political party to override the separation of powers and the system of checks and balances designed to maintain that separation.
- The opinion creates the potential for some new political entity to assume power and override the rule of law in our nation.
- The opinion may well imperil the very new-found right same-sex marriage activists have won by this ruling, not to mention other rights. As one of the dissenting judges, Samuel Alito, put it:
“Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims,” Alito writes. “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed“ .
- And one more possible unintended consequence of this ruling must be considered by everyone on both sides of the debate, particularly in the current state of the world. It is illustrated by this “hypothetical” situation:
What if, say, an enemy of our form of government and our culture, including an enemy of the so-called “gay culture,” gains access by covert means by, say, remaining “unnamed,” as it were, thus enjoying relatively unfettered entrance to, and influence in, the country; and what if by more overt means of, say, establishing its own legal enclaves in certain towns, cities, or regions of the country, and/or by gaining access by appointment (via a sympathetic administration) to, say, federal courts, even the SCOTUS, it gains the potential to hold judicial power over all of us?
And what if, say, this enemy eventually gains enough of this access—and power because our original, protective three-branch governmental system has been breached–to legislate their own version of the law of the land and thereby cause the nation to arrive at a tipping point of change where we no longer even recognize our own legal and cultural roots—and protections?
And worse, what if, say, this enemy has cultural beliefs they want to impose that are also foreign to this nation’s (arguably, Judeo-Christian) beliefs and this enemy opposes such newly deemed rights such as, say, the right of homosexuals to marry, let alone have “free expression (of their lifestyle) thereof”? Or even any other traditional rights defined in and established by our Constitution?
Further, what if this enemy has proved that they are even willing to, say, punish those who hold opposing views and practices by imposing heavy taxes and fines, by stripping them of their rights, by imprisoning them–or worse?
What if? …
We ignore such unintended consequences and possibilities to our peril, which is why many, including the dissenting Justices, fear what the SCOTUS just did to our representative republic form of government may have heralded a new and very dangerous era for this nation, whether or not such an extreme case as I have presented might actually become a reality. There are innumerable other possibilities that might ensue with the door now opened.
I know the issue of homosexuals’ right to marry is a highly emotionally-charged issue on both sides of the debate. It has been brilliantly, I would say, taken off of the far less appealing (and much less interesting) Constitutionality debate table and successfully argued via very clever use of the rhetoric of tolerance which Americans have always been very keen on preserving and rightfully so.
Social and traditional media have been saturated, if you will, with the potency of the tolerance argument, likewise the emotion-grabbing (and often argument-stopping) rhetoric of the freedom to love whomever one wills.
(As an aside, as a writing and rhetoric instructor I would add that the lack of critical thinking as opposed to “sound-byte-” or “meme-think” which is becoming the popular norm by which political activists often plead their cases nowadays, has also played a significant part. I am sure, at least I hope, that if people truly took the time and did the research necessary to adequately study this decision all the way to its logical and now legal conclusions, most would resist meme–think for the greater good. I am not, however, holding my breath for that. Sadly.)
Additionally, in my opinion, recent successful litigation against the opposition to this, now, right (e.g., lawsuits brought and won against businesses that declined baking wedding cakes for same-sex marriages and other related litigation), has caused a kind of low-grade fever of fear, so to speak, that I believe successfully erodes the confidence of much of the opposition.
It is just much easier to switch the topic to tolerance and love than to face down the fear and focus on the bigger issue of what is really happening to our nation which is what we—both sides—really should fear.
Cooler heads must prevail—for all of our sakes, pro, con, and neutral, on this issue or any other issue now vulnerable in open-season, as it were, on the rule of law.
By the SCOTUS jumping ship to legislate law instead of just reviewing law, as they are Constitutionally tasked, we now face two very serious challenges as a nation:
- That of making sure that true–and classically defined–tolerance remains for our already established rights, religious rights in particular, and
- That of respecting the fact that we face a new fight to remain/regain a nation of, for, and by the people now that the protections established to prevent power grabs by one or more branches of our government have been seriously compromised if not destroyed altogether.
As the little girl said, “We are not in Kansas anymore.”
Personally, I align with the sustainability, if you will, naturally, nationally, traditionally, and morally of the original definition of marriage as articulated here:
“Marriage has historic, religious and moral content that goes back to the beginning of time, and I think a marriage is as a marriage has always been, between a man and a woman,” Hillary Clinton, 1999.
As a follower of Christ, I align with the definition as articulated here:
“He who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’” (Matt 19:4-5). Jesus.
 See here for a reference to the specifically defined duties of each branch of government.: http://www.regentsprep.org/regents/ushisgov/themes/government/3branches.htm
 Here is the PDF of the Court document on this decision providing full context: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf