On Monday, the Supreme Court refused to take on the issue of gay marriage – and by doing so, essentially greenlit same-sex marriage across the nation, encouraging low-level courts to continue knocking down traditional marriage laws across the country. Challenges to pro-same-sex marriage rulings in Indiana, Oklahoma, Utah, Virginia and Wisconsin have been rejected, placing all of those states on notice that they must begin issuing marriage licenses to two men or two women.
The Court clearly wants to wait until a majority of states have been forced to embrace same-sex marriage by lower-level appeals courts. Then they can determine that a “trend-line” has been established, suggest that society has “evolved,” and declare that a new standard must be enshrined. That, of course, was the logic of Lawrence v. Texas (2003), in which the Court waited 17 years to overrule Bowers v. Hardwick (1986), stating that anal penetration was a hard-fought Constitutional right; the Court in that case stated that Bowers no longer applied because of “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Justice Scalia rightly pointed out that the Court’s statement was false – the state, he explained, still regulates “prostitution, adult incest, adultery, obscenity, and child pornography.” And Scalia also pointed out that “Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior.”
But that will not stop the Court.
They will wait until the time is right, then declare same-sex marriage the law of the land. They have already given lower courts precisely the tools with which to create an “emerging consensus.” Last year, the Court ruled that state attorneys general could simply refuse to defend state laws in favor of traditional marriage, thereby allowing the executive branch of state government to completely destroy law it doesn’t like. The Court furthermore set the predicate for future same-sex marriage rulings in United States v. Windsor, in which, as Scalia summarized, the Court declared “anyone opposed to same-sex marriage an enemy of human decency.”
This is the beauty of Supreme Court doctrine: they don’t even have to do their judicial dirty work anymore. They can rely on lower-level courts to violate the Constitution, then declare the Constitution magically changed because of an “emerging” consensus on violating the Constitution.
And the people have no recourse. They cannot pass laws that for two and a half centuries have been fully Constitutional. They cannot fight state attorneys general who betray their voters. They must sit by as the courts play legal games while awaiting the great Obama-esque “evolution” – an evolution that is almost entirely top-down, and that will then be dictated to us by our betters.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.