Gay marriage comes to America courtesy of five judges
National Affairs Rory Leishman
In Obergefell v. Hodges.on.June 26, the United States Supreme Court endorsed.the manifestly preposterous argument that the provision in the Fifth and 14th Amendments to the United States Constitution that no person shall “be deprived of life, liberty or property, without due process of law” implies that same-sex couples have a constitutional right to marry.
Likewise, on February 6, the Supreme Court of Canada purported in.Carter v. Canada.that Canadians have a constitutional right to physician-assisted suicide by virtue of.the guarantee in section 7 of the Canadian Charter of Rights and Freedoms: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Both Obergefell.and.Carter.were unprecedented. Both rulings overturned fundamental laws dating back centuries. And both rulings would have astonished the great majority of the legislators who enacted the United States Bill of Rights and the Canadian Charter of Rights and Freedoms.
While the Carter decision was unanimous, Obergefell was backed by only five of the nine judges on the United States Supreme Court. Better yet, each of the dissenters in Obergefell filed separate opinions that roundly repudiated the reasoning of the majority in plain and compelling language that freedom-loving Canadians would do well to ponder.
Consider, first, the key statement by Justice Anthony Kennedy in his reasons for the majority in Obergefell: “When new insight reveals discord between the Constitution’s central protections and a received legal stricture (such as the ban on same-sex marriage), a claim to liberty must be addressed.”
Perhaps so, but it is not up to unelected judges to determine when a “new insight” warrants changing the law. In a democracy, changing laws and amending the Constitution are the exclusive prerogative of elected representatives of the people in the legislative branch of government.
Over the past 30 years, judicial activists on the Supreme Court of Canada have emulated their counterparts in the United States, by routinely flouting the separation of legislative and judicial powers. The.Carter.ruling is no exception. Time and again, the Parliament of Canada investigated, debated and rejected the legalization of euthanasia. In the 1993.Rodriguez.ruling, even the Supreme Court of Canada agreed that Canadians have no constitutional or legal right to physician-assisted suicide. Yet just 12 years later in.Carter, this same Court reversed its own precedent and defied the express will of Parliament, by legalizing physician-assisted suicide.
Correspondingly, in.Obergefell, the United States Supreme Court overturned its own precedents defining marriage and defied the express will of the United States Congress and most of the state legislatures, by legalizing same-sex marriage under the pretence of upholding the Constitution.
Writing in dissent in.Obergefell, Chief Justice John Roberts was blunt: “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.”
“The majority’s decision is an act of will, not legal judgment,” Roberts added. “[T]he Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia…. Just who do we think we are?”
In a separate dissent, Justice Samuel Alito likewise warned: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”
Justices.Antonin Scalia and Clarence Thomas emphatically agree. In another dissent joined by Thomas, Scalia asserted: “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court…. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Would that we had even one principled judge like Alito, Roberts, Scalia or Thomas on the Supreme Court of Canada. As it is, our.top court is packed with nine overweening judicial activists who have no compunction about trampling upon our own hard-fought freedoms, by arbitrarily changing the laws and amending the Constitution in open defiance of the democratically expressed will of Parliament and the provincial legislatures.
