In De Leon v. Perry, a case filed by gay couples (pictured below) in the United States District Court for the Western District of Texas, Judge Orlando Luis Garcia, a Clinton appointee, signed an order on February 26, 2014, overturning the State of Texas’ ban on same-sex marriage. The ban was approved in November, 2005, as a Texas constitutional amendment, by 76 percent of State voters, or by a margin of over three to one. Judge Garcia further ordered that the ban continue in effect pending exhaustion of the State’s appeals. 

Governor Rick Perry immediately issued the following statement concerning the court’s ruling: "Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution, and it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state." 

Governor Perry makes a meritorious point. The federal judiciary should not disregard a democratic majority of a State’s voters desiring that marriage be a union between one man and one woman.  It should not be within the province of judges, who are appointed for life and are unaccountable to the electorate, to legislate concerning gay marriage.   

“Oh!” but you exclaim, “You are missing the big issue concerning homosexuals receiving ‘equal protection of the law’ under the Fourteenth Amendment.” No, I am not. Those who claim this protection for homosexual marriage have never been able to show us where the United States Constitution, in its various articles or amendments, specifically speaks of marriage or of same-sex discrimination. In this absence, a State should have the right to define marriage however it wishes. 

An exception concerning marriage should be noted. During the Reconstruction Era, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified. They specifically addressed the evils of racial discrimination.  In due time, it followed, in Loving v. Virginia (1967), that anti-miscegenation statutes, outlawing interracial marriage, were banned under the Equal Protection Clause of the Fourteenth Amendment. Yet for anyone to argue that there is a parallel between interracial marriage and same-sex marriage is misguided. Why? Because there is no textual support for this parallel in the Constitution. Race is one thing, while gay sex is another. 

Sure, the United States Supreme Court in Lawrence v. Texas (2002) outlawed anti-sodomy statutes, and in United States v. Windsor (2013) declared unconstitional Section 3 of the Defense of Marriage Act, that defined marriage as a union between one man and one woman. To be fair, any lower court judge, such as Judge Garcia, would have little, if any, interpretative leeway in the face of these and other powerful precedents. He correctly predicted that his court would be only the first stop on a journey that would wind through the Fifth Circuit Court of Appeals to the Supreme Court, but he did not predict what the outcome would be. 

I will intrepidly venture a prediction, albeit a sad one:  Texas’ constitutional ban on gay marriage will be struck down by a vote of five to four in the United States Supreme Court, with the majority opinion written by none other than Justice Anthony Kennedy, who authored both Lawrence and Windsor.

In Windsor, Justice Kennedy’s opinion verged upon the paranoid and absurd, when he contended that, even the title “Defense of Marriage Act,” demonstrates that the statute was a “malicious” one, with the “avowed purpose and practical effect . . . to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages. . . .” Think about the facts for a moment:  this Act passed in both houses of Congress by overwhelming majorities and was signed into law by none other than President Clinton.  And yet here is a Supreme Court justice, clearly out of control and absorbed by his own sense of power, who is vehemently accusing them all of malice!  

In Lawrence, Justice Kennedy also took great pains to note that he did not appreciate the way in which the Court had previously, in Bowers v. Hardwick (1986) (which upheld Georgia’s anti-sodomy statute), begun its discussion. The Bowers Court stated, “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That clear statement of the issue was apparently too coarse and crude for Justice Kennedy's taste. 

The emotional and largely irrational tone in Windsor and Lawrence has led some curious commentators to wonder whether Justice Kennedy does not perhaps have some skin in the game, whether he is not perhaps our first homosexual Supreme Court justice. Yet who should care about the justice's personal predilections?  His reasoning and judicial philosophy are, on the other hand, a source of profound concern.

My disagreement with the Supreme Court’s decision, if and when it is handed down in De Leon, will be much broader and deeper than the issue of marriage itself. Here is my view in a nutshell: the federal judiciary is a single branch of government, never intended by the Founders to constitute the “dominant” branch. Professor Larry D. Kramer, in his book, The People Themselves: Popular Constitutionalism and Judicial Review, points out that, even Marbury v. Madison (1803), which firmly established the power of judicial review, never held that the Supreme Court alone possesses the power to say what the Constitution means, or even possesses a power greater than the other branches to do so. The thrust of Marbury was that the Court too has the power to pronounce upon the constitutionality of a law.  As Chief Justice John Marshall, the author of Marbury, meticulously phrased it: a law repugnant to the Constitution is void, and “courts, as well as other departments, are bound by that instrument.” 

It is not as if Professor Kramer’s view of the Court’s power is historically vaporous or constructed of whole cloth.  Thomas Jefferson, James Madison, Andrew Jackson, and Abraham Lincoln all took the same position. Jefferson stated, “[E]ach of the three departments has equally the right to decide for itself what is its duty under the constitution, without regard to what the others may have decided for themselves under a similar question.”  Madison likewise wrote, “But, I beg to know, upon what principle it can be contended that any one department draws from the constitution greater powers than another . . .” Jackson, addressing the Court’s having upheld the constitutionality of the Second Bank of the United States, maintained, “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” Lincoln of course considered it his public right as President to disagree with the decision in Dred Scott v. Sandford, and considered Chief Justice Roger Taney’s majority opinion a moral and constitutional travesty. 

Notwithstanding this history, the Supreme Court is now mistakenly understood as "the final word" on constitutionality. The fact that nine unelected men and women can negative both State and federal statutes in accordance with an expansive, and sometimes perverse, reading of the Constitution amounts to nothing short of tyranny.  What moral or legal right should any elite group, such as the Court, have to dictate how American society is to be structured, especially in the absence of an explicit constitutional provision?  What moral or legal right should any unelected group, such as the Court, have to strike down a statute overwhelmingly passed by Congress and signed into law by the President, when there is no obvious constitutional violation?  This is certainly a perversion of what the Founders intended, and verges upon what I have elsewhere called “krytocracy.” 

This hypertrophic view of judicial power encroaches upon the power of the people themselves.  If you happen to be a Texan who voted in favor of the same-sex marriage ban in 2005, you should realize that your vote is on its way to being eradicated by a few elitist men and women with their own highbrow views concerning how civil society should be structured. 

The proper antidote for this usurpation of power is for the people to make themselves heard. This is of course easier said than done when the electorate is apathetic, unenlightened, and morally decadent. 

“That’s not me!” you complain.  Good, so when will you be willing to go with a million others to shake the foundations of Washington D.C. in order to protest the loss of your voice in government?  When will you be willing to participate in even a local rally in support of your rights?  The future of this nation depends upon how reasonable, responsible, and active "we the people" are in standing up against those who are overreaching us. 

February 27, 2014