A federal appeals court in Ohio upheld on Thursday the right of four states to ban same-sex marriage, contradicting rulings by four similar courts. The matter seems likely to be referred to the Supreme Court, who would have to decide whether laws defining marriage as a legal union between one man and one woman are constitutional in the United States. There are speculations that the Supreme Court might hear the case still this term, i.e. before the summer of 2015.
The decision, written by Judge Jeffrey S. Sutton, overturned lower court rulings in Kentucky, Michigan, Ohio and Tennessee that had ruled in favor of same-sex “marriage”. As Judge Sutton stated, it appears now almost inevitable that American law will allow gay couples to marry. But the more fundamental question, he wrote, is: “Who decides?” If people really want same-sex “marriage” to be the law of the country, would the more honest path to achieve that aim not be to pass legislation?
In declining to legislate from the bench, the United States Court of Appeals for the Sixth Circuit sets a spotlight on the disease of judicial activism that, beginning with controversial decisions on medical contraception and abortion, has pervaded the United States’ judiciary system like a metastasizing cancer. It is of course a ridiculous assumption that the fathers of the US Constitution, back in the 1780’s, had the intention of providing for “marriages” between two persons of the same sex, or, even more absurdly, outlawing all marriage laws that failed to do so. From the dawn of times until 2001, when the Netherlands were the first county in the world to legislate for same-sex “marriage”, the fact that marriage was between a man and a woman was never doubted by anyone anywhere.
So, if people really want same-sex marriage, why not legislate? Why not follow the democratic procedure that the Constitution foresees?
The answer is simple. The supporters of same-sex “marriage” want a Supreme Court decision because Supreme Court decisions are more difficult to undo than any law, and because, following the United States v. Windsor judgment of 2013 they feel almost certain that there is a 5-4 majority of “activist” judges in the Supreme Court who is ready to oblige them. Since judicial activism became rampant in the US in the 1970s, the appointment of judges has become a highly politicized process in which candidates are selected not so much on the basis of their professional merits than on their political opinions. In particular the appointment of two Supreme Court Judges by President Obamaappears to have been motivated less by their qualifications as lawyers than by their readiness to bend the Constitution. Same-sex “marriage” is known to be high up on Obama’s list of priorities.