Same-sex marriage and the tyranny of law

The June 26 same-sex marriage ruling has had conservative politicians railing over the “tyrannical ruling” of the justices. Rick Santorum has called the decision a “flawed, failed decision (that) is an out-of-control act of unconstitutional judicial tyranny,” and that the decision should have been left to the states, while noting that the judges were unelected.

Mike Huckabee has compared the justices to an “imperial British monarch… repeal(ing) the laws of nature and nature’s God.”

{mosads}The ruling was an “all-out assault against the religious freedom rights of Christians” to Louisiana Gov. Bobby Jindal. Conservatives have consistently framed themselves as freedom fighters. However, it is difficult to see how this defense is valid under any context, given the history of the Supreme Court and the very nature of the issue.

Conservatives have cited Plessy vs. Ferguson and Dred Scott vs. Sandford as cases that have define the overreach of the Court, for they resulted in the further subjugation of African Americans for decades before and after the Civil War. Indeed, these previous mistakes have tarnished the reputation of the Supreme Court forever, but the Court’s uses of judicial activism have not all been human rights disasters.

In the 1953, Brown v. Board was the first government action to target segregation beyond the armed forces, ruling that segregation in the very same conservative states opposed to same-sex marriage today was unconstitutional. The Warren court did what no congressman, state, or president could do. It initiated change when the country was in no state to democratically uphold the human rights of its own citizens.

Marbury vs. Madison established the very power of the Court above democratically elected officials that it now has; Reynolds vs. Sims suppressed the right of elected officials to manipulate district boundaries in their favor; Miranda vs. Arizona required that suspects be informed of their rights by the police, and the list goes on. The Supreme Court’s decisions have affected countless issues building the foundation of society just as same-sex marriage has, in spite of the strong public opposition of the times.

Social conservatives have attacked the Supreme Court because of how its opinion disagrees with theirs, not because of how the Court has overstepped its boundaries—boundaries that are rather difficult to overstep considering how its justices are appointed by the democratically elected president of the United States. Had the issue of marriage been completely left up to the states over the years, Loving vs. Virginia would have never happened, and state laws prohibiting interracial marriage would have never been struck down.

Marriage rights are rights of a minority and are by their nature, a human rights issue, and therefore, a constitutional one as well. And even if democracy were to prevail on the issue, when 57 percent of Americans support the legalization of same-sex marriage, with only 37 percent opposing, it is rather difficult to believe that the people would side with the opinions of Senator Rick Santorum.

And contrary to Jindal’s views, the religious freedom of Christians has little to do with the right to suppress access to practices contradicting the conservative Christian religion. The First Amendment serves to protect minorities from the suppressors—the very Christians fighting to suppress same-sex marriage—just as demonstrated by Engel vs. Vitale, where the Court ruled government-imposed prayer—an affront to atheists and agnostics around the country that was intended to socially stigmatize and shun the nonreligious—was unconstitutional. The First Amendment has everything to do with the freedom of individuals to practice religion as they like, and even try to convince others to join their cause, but not to impose Christianity, Judaism, Islam, Buddhism, or any other religion on anyone else through the government.

If conservatives truly respect the Constitution, they will attack same-sex marriage not because of the fact that the Supreme Court ruled on it, but for the merits of the newly institutionalized concept and the potential opportunity of the Court to reverse its decision. But so long as the Court is attacked as a “tyrannical” institution, the conservatives will be doing nothing more than spitting on the legacy of our founding fathers and the numerous decisions the Court has “imposed” on the public in favor of human rights, including those of African Americans.

Doanvo is research assistant for the Global Initiative on Civil Society and Conflict.