Each week, the Watcher's Council hosts a forum on a topic du jour, as well as a weekly contest among the members for best post. This week's forum question is "how will the Supreme Court rule on same sex marriage?" I have kindly been invited to respond.
Update: The forum is now posted here. Do click over to see how the rest of the respondents answered this question.
The Supreme Court is currently considering same sex marriage in the case of Obergefell v. Hodges. I expect that they will decide the case by discovering that there is a right to gay marriage in the Constitution. It has been, they will claim, perfectly hidden in plain sight in the Constitution for a century and a half.
I also expect the Court's decision to break the camel's back as these supremely arrogant judges force left wing social policy down the throat of this nation and begin a final, direct assault on the rights of conscience of the religious in our land. If you thought the activist Roe v. Wade decision caused turmoil, I can assure you, you haven't seen anything yet. As Bookworm Room pointed out some time ago, unlike with abortion, this decision will, for the first time in our nation's history, make it unlawful to live by the same Judeo-Christian beliefs that have been part of our nation since the Founding.
As I pointed out in The Supreme Court: Originalism, Judicial Activism, & America's Future, there are two schools of Constitutional interpretation, originalism and activism:
Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.
When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplaceable tool to remake society.
The left has been relying on judicial activism for the past century to work fundamental, unconstitutional and non-democratic changes to our society, and they have engaged in what has amounted to a jihad on the Judeo-Christian religions. Finding that a right to homosexual marriage has been hiding in the Fourteenth Amendment for the past 147 years would set the stage for the last step in that jihad.
The Fourteenth Amendment holds, in relevant part, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws" - the so called Equal Protection clause. The Fourteenth Amendment was passed in 1868, in the wake of the Civil War and the abolition of slavery, for the purpose of insuring that blacks were treated to no legal disability in this nation. There is no evidence whatsoever that those who passed this law intended its provisions to extend to homosexuality. To the contrary, homosexuality was then under legal disability throughout most of the states. To claim now that the Equal Protection clause includes homosexual marriage in its ambit is to make an utter mockery of the Constitution and our system of government. This is not a nation of laws; it is now a nation subject to the whims of activist judges who, in acts of supreme arrogance, corrupt our entire government when they impose social policy at odds with the will of the people of this nation and their elected representatives.
What should happen is that the nine members of the Supreme Court should examine intent of those who drafted and voted for passage of the Fourteenth Amendment in 1868. That would inevitably lead to the conclusion that homosexuality is not a "right" enshrined in the 14th Am., and that that there is no Constitutional right to homosexual marriage. The only way to change that at the federal level is through a Constitutional Amendment as set forth in Article V. Barring that, because the Constitution does not concern itself with homosexuality or marriage, this is an issue of social policy that, per the Xth Amendment, should be left to the states. Period.
But what we have on the Court today are at least four judges who live to impose their left wing social policy preferences on our nation, and Justice Kennedy, who has shown himself ready to join the four in support of homosexuality and against the rights of the religious in this nation. Two years ago, Kennedy and the other four struck down the Defense of Marriage Act and refused to hear an appeal seeking to uphold California's referendum on Section 8, defining marriage as between a man and a woman. Last year the Supreme Court let stand a New Mexico decision punishing a Christian photographer targeted by the gay mafia for refusing to photorgaph a gay wedding ceremony. The handwriting is on the wall on this one. We'll see what follows after.