When USA Today publishes an opinion piece citing “horrifying” fear that the U.S. Supreme Court could overturn Obergefell, and Left-leaning Slate urges this “sudden panic” doesn’t go far enough, that’s when the pro-family movement knows it’s winning.
This fear stems from Liberty Council filing a petition for writ of certiorari (a request for the Court to hear the case) on behalf of Kim Davis, the former Kentucky county clerk who was jailed in 2015 for refusing to issue marriage licenses to same-sex couples, due to her religious beliefs. U.S. law allows any citizen the right to file a petition for a writ of cert. to our land’s highest court after a lower court has ruled against them. The Supreme Court is highly selective in agreeing to hear such petitions. Davis petition asks the Supreme Court to review the U.S. Court of Appeals for the 6th Circuit’s rejection of her religious freedom case and to also overturn their 2015 Obergefell decision.
It is an open question whether the current Court will take up Davis’ request. Yet, on August 7, the U.S. Supreme Court did direct the two individuals who sued Davis to file a response to her petition. This is not insignificant. As veteran Supreme Court watcher Amy Howe notes, “The court essentially took Davis’ case out of the group of cases facing virtually automatic denial … into the group of cases that could theoretically be granted.” She adds, “Although we don’t know whether Davis has the votes, it remains possible” due to current Court makeup.
Yet, USA Today confesses, “The entire LGBTQ+ community [has] reason to be fearful – even if the case is unlikely to be heard by the court.” After listing a number of factors they assume serve as protections against Obergefell being overturned, the editorialist laments, “It doesn’t change the fact that the very notion of this right being overturned is a reminder to the LGBTQ+ community that our rights are dependent upon the whims of politicians and judges, and could easily disappear.” Of course, that’s because the Supreme Court created such a “right” out of whole cloth in the first place.
Slate warns no one should assume “gay rights are safe at this Supreme Court.” They lament, “Far from it: They are under active attack, albeit in a subtler way.” Advocates for same-sex marriage are admitting the momentum is against them and that is good for the pro-family movement.
This is what happens when activists get a narrow, heavily contested decision that many justices felt was clearly outside the Supreme Court’s purview. It is very good that gay activists and their faithful allies in the elite press recognize the vulnerability of their fragile victory in Obergefell.
In his strong dissent to the majority’s slim 5-4 Obergefell ruling, Chief Justice John Roberts stated, “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 people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment” The Federalist No. 78, p. 465.
He added, “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not.” He further noted, “For those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.” He then asserted, “The fundamental right to marry does not include a right to make a State change its definition of marriage.”
For that is precisely what the majority did in Obergefell. They redefined marriage based on bad law. It was never about so-called “marriage equality.” The Court redefined the fundamental pre-law institution of marriage, which until the last few milliseconds of human history, has always been considered, across diverse cultures, belief systems and religions, to be a union joining the two essential halves of humanity: male and female. They had no right or authority to do so.
There are very compelling reasons to object to same-sex marriage. The majority in Obergefell freely admitted, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”
But we are disparaged in countless other places. Even still, we must remain resolute.
Even those who argued most passionately for the redefinition of marriage have not taken to their new creation. Gallup has tracked the percentage of “LGBT adults” entering same-sex marriages for a decade. They reported 8 percent of same-sex identified adults were in “gay marriages” in 2015, the first year it was legalized. Gallup recently reported that number currently sits at 8 percent. The highest that number ever got since Obergefell was 10%.
Clearly, same-sex marriage was not the great, essential need activists regularly told us it was when so few are making use of its legal status.
Obergefell should be struck down and overturned. That is what should happen when an activist Court plays the role of the legislature, as it did in Obergefell and Roe v. Wade. And Focus on the Family will advocate and work hard for that day. Pro-family advocates should never yield in their work to defend natural marriage.
We are winning! When our opponents are telling us precisely that, we should listen.
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