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There’s One BIG Problem with the Supreme Court’s Gay Marriage Case that No One’s Talking About

Building the Resistance to Same-Sex Marriage…
(first in a series of articles)

By William J. Olson and Herbert W. Titus

On April 28, 2015, nine unelected lawyers drawn from three elite law schools (Harvard, Yale, and Columbia) listened to 90 minutes of oral argument about same-sex marriage and then retreated behind a wall of red velvet drapes to confer secretly about whether the U.S. Constitution requires that the U.S. Supreme Court impose same-sex marriage on the entire nation.

Consider for a moment the process by which that decision will be reached. When the Court decided to hear the Obergefell consolidated cases from the Sixth Circuit, that decision was reached in secret. The Justices consult only with their colleagues and their law clerks, also drawn from elite law schools.

When a decision in the case is issued, presumably before the end of the current term toward the end of June, the Court will address only those issues argued by parties and the amici curiae that it cares to address. Its opinion will contain only those reasons for its decision that the Court chooses to reveal. The majority decision may be agreed to by as few as five of these nine justices, unaccountable to no one but themselves.

And then, the Court will expect the American people to set aside their individual and collective judgment and passively abide by whatever decision is reached — based on a doctrine found nowhere in the U.S. Constitution — “judicial supremacy.”

Although the Supreme Court’s only constitutional responsibility is to resolve “cases” and “controversies” brought before it, the High Court often acts as if it has been entrusted with the raw power to decide for us the most important public policy issues facing the nation. While the Court would have us believe that those decisions are mandated by faithful adherence to the constitutional text, the truth lies elsewhere.

In his autobiography, Justice William O. Douglas provided a glimpse behind the curtain as to how the Supreme Court really works. He explained that Chief Justice Charles Evans Hughes had once explained to him:  “[a]t the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”

We have been working in the judicial vineyard in support of traditional marriage for many years.

When one of the cases now being decided by the U.S. Supreme Court (DeBoer v. Snyder) was before the Sixth Circuit, we filed anamicus curiae brief. In the U.S. Supreme Court, we filed another amicus brief. When the Supreme Court decided the Defense of Marriage Act (“DOMA”) case (U.S. v. Windsor) in 2013, we filed three briefs, one at the petition stage, one onthe merits, and one on the jurisdictional question; and in the Proposition 8 case (Hollingsworth v. Perry), we filed briefs at the petition stage and one on the merits.

Even before that, we filed a brief in 2003 in Lawrence v. Texas when the U.S. Supreme Court began down this short road to same-sex marriage while denying that it was doing so. In total, working with groups like the U.S. Justice Foundation and Public Advocate of the United States, we have now filed a dozen appellate briefs over the past 15 years addressing the issue of “homosexual rights: in one context or another.

Although the judicial trend to embrace “homosexual rights” is undeniable, we certainly have not given up hope about the Court’s decision. In fact, it is our belief that the case for same-sex marriage is so pathetically weak that the Court may understand that it would suffer a crippling embarrassment once the People come to really understand that in no way does the U.S. Constitution command same-sex marriage.

But our role now, while hoping for the best, is to prepare for the worst — and that worst could be terrible indeed. Part of our last Supreme Court brief was published by The American Vision under the name “12 Reasons homosexual marriage will wreck the nation.” If you need additional reasons to give your concentrated attention to this issue in the coming days, you will find those reasons in that article.



 

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