Supreme Court gay-marriage decision foreshadows difficulties

The Supreme Court has spoken on the issue – can homosexual couples marry?


The Constitution does not even mention marriage, let alone between gays, but by finding a so-called penumbra (not the astronomical kind, but the obscure, cloudy, vague type) in the Constitution’s 14th Amendment, it discovered that such couples had a constitutional right to marriage.

Some background is helpful.

In scientific circles, it is considered unfair or unethical to accuse a colleague of bias while engaging in occupational discourse. Besides, bias is irrelevant to the validity of a logical argument, and to the relevant experimental evidence, provided the experiment can be duplicated by a third party. But this ban does not carry over into legal circles.

So when a jurist wants to arrive at a desired conclusion – say, that certain citizens have specified rights – and cannot find such rights explicitly stated in the Constitution or its amendments, the jurist doesn’t just give up. His bias allows him to search for a clause, a phrase or a context in these documents that allows him to infer that the right is implied.

Such penumbras do not grow on trees – they must be diligently searched for. To find one, it helps the jurist to be motivated, driven – and biased?


Justice Anthony Kennedy, the author of the majority gay-marriage opinion, found his prized penumbra in the Constitution’s 14th Amendment, which provides that citizens are guaranteed equal protection of the laws. So if homosexual couples want to marry, they have the right to do so.

Unfortunately, mere assertion of this statement, which in logic is called a conditional statement, does not, in itself, constitute formal proof of it. As a matter of fact, the assertion falls far short of being a rigorous, compelling proof and thus subjects the argument to controversy. Of course, standards of proof are less stringent in a court of law than in other professional areas.

Whether homosexuals should have the right to marry is a political issue and best left to our legislative processes to work out. Indeed, at least 11 states already have enacted legislation supporting, to varying degrees, such marriages. This is representative government, not the judicial usurpation of the people’s power as reflected by the current court’s action.

Indeed, this court’s action marks another judicial power grab, carrying us further from representative government.


It is sad to cynically observe, but literally true, that whenever the court is seeking more exclusive power, it often looks for another penumbra. The reader may ask: Is this penumbra approach legal? Since the court itself is the final arbiter of such questions, we leave the reader with the task of answering his query.

The decision commands non-homosexuals to alter their values, values that are, to varying degrees, morally-, faith- and religious-based, and some that are explicitly protected by the Constitution, as well as by traditions stemming from an array of global cultures that date back to the origins of antiquity.

This rich, worldwide history of traditional marriage merited hardly a shrug from the court’s majority bloc.

One might humbly ask Justice Kennedy, and members of the majority, to identify a way (a penumbra perhaps) that would permit people, not the court, to decide this overwhelmingly important issue. As it stands, the court is weakening, if not eliminating another pillar of our representative government.


This action does not mark the first time the Court has employed the gambit. It appears more often, however, when a jurist deems an issue to be of crucial importance. And in the current case, finding and sweeping homosexual rights under the scope of federal power, and denying jurisdiction over those rights to the states, was deemed of great importance to Justice Kennedy and of course, the majority bloc.

Amid the fallout of the Kennedy opinion there lingers a dark harm that will bear heavily on some individuals, organizations and especially religious faiths. They risk becoming open to charges of discriminating against homosexuals.

The 14th Amendment now becomes a legal weapon. And there are a number of prosecutors eager to advance their careers on the tailwinds of this decision. They will latch on to the numerous homosexual anti-discrimination enactments waiting to be applied to unsuspecting victims.

While this overall subject has been mentioned by others (see William McGurn’s op-ed, The Wall Street Journal, June 30, 2015) it bears repeating.


This is not all. Justice Kennedy in his majority opinion stated a need to provide dignity to people who are currently being discriminated against – i.e., a penumbra is discerned to reinforce a primary penumbra. Where is there a constitutional protection for a right to dignity?

Offending one’s “dignity” may be unethical or offensive, but unconstitutional? As the basis for unending litigation and the discovery of further unexpected rights, this innocent comment is bound to be seized by those alleged to be “sensitive” to the myriad remarks offered by the “insensitive.” What a can of worms!

But of even greater significance is: How much added judicial power do jurists gain with the new penumbra apparently firmly in hand? Quantitatively, it must contribute immensely to their inventory of means to gain power and, by denying states the ability to govern in their domains, puts another nail in the coffin of representative government.

Ironically, because application of this gambit effectively preempts Congress from acting on the issue, it substitutes judicial rule for legislative action, providing still another seal for a final resting place of our representative government.


(The writer is a professor emeritus of financial economics at the University of Georgia. He lives in Aiken, S.C.)

Dee STAFFORD 9 months ago
Under current application of the 14th Amendment nearly anything can be justified.  This shows how out of control courts have got and how far they have deviated from the intent of constitutional amendments.

None have been more misapplied than the 14th Amendment.  The purpose of the 14th was to give the newly freed slaves all rights of  citizenship; yet, the left has used it to justify anything it desires.

It could be  used for a woman to marry her dog, as has been attempted in England.  What keeps aunts from marrying nephews?  Brothers from marrying sisters?  After all aren't they protected by the 14th Amendment?
Lee Benedict 9 months ago
Um, no.  The Fourteenth Amendment does not apply to "marriage" or "weddings".  Marriage, a wedding, is a religious ceremony, correct?  The State has no business telling the Church that the State will take over a Church ceremony.  No judge, no mayor, no governor, has the authority to perform a ceremony that we all know was created by religious authorities, as a religious ceremony.

I tell you what, if anyone reading this is a preacher, priest, rabbi...start issuing driver's licenses, liquor licenses, building permits, certificates of it all.
Val White 9 months ago
They'd be shut down tout de suite!
Larry Jones 9 months ago
Lee, please look up the difference between civil marriage and religious matrimony.  Both state and federal laws target only civil, legal marriage; religious matrimony is all up to individual religions to do whatever they wish, if anything.
Whisk Ming-Su 9 months ago
What a biased "article" that relishes in penumbras.

"Offending ones dignity is not unconstitutional"

Of course. Yet that's your argument against legalize it. That we'll "offend" people bigoted against gays. 

Somehow the right of evangelicals to not be offended trumps gay people's right to equal protection under the law? Not how it works. Not at all.

In case you forgot or are just blissfully ignorant, interracial marriage was legalized the exact same way gay marriage was. Except public support for interracial marriage was significantly lower in 1967 than support for gay marriage was in 2015.

We get it, you don't view gay people as equal to you and are upset that the law dared to go against your prejudices. But you'll get over it and find a a new group to irrationally disdain. I believe in you
Val White 9 months ago
Gay people are equal, not special. 
Val White 9 months ago

Marriage is a religious ceremony, not a government-protected right.

Gay persons have the right to be united BUT NOT by forcing clergy to marry them.  There are already clergy who are willing to marry them.  

Why not call it a "Union" and give all gay persons the same rights to each other's lives, assets, tax filings and healthcare and any other responsibilities, the same right to be financially responsible for each other. 

They should also be given the same consideration when they "divorce" as other married couples.

Roy Whitley 9 months ago
I personally don't give a rat's a** if same sex couples wish to tie the knot. I do care that they expect exceptional treatment. Gays have no dog in the hunt when it comes to abortion, children's education and rearing progeny. Keep it that way.


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