In the wake of Monday’s Supreme Court “non-decision” that paved the way for gay marriage in 30 states and the District of Columbia, the “originalists” – who believe the courts should seek only to discover the original intent of the Constitution – were in high dudgeon. “This is judicial activism at its worst,” railed Senator Ted Cruz. “The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.” Cruz echoed Justice Scalia’s dissent when the Court declared the Defense of Marriage Act unconstitutional in what he called a “jaw-dropping . . . assertion of judicial supremacy.”
And after a stunningly superficial survey of the founding fathers’ writings, I admit I could not find a single one who supported gay marriage. Nor could I find any who opposed it.
And yet, as the country turns rightward, gay marriage moves inexorably from unthinkable to inevitable, and the Supreme Court, despite its conservative instincts, is tagging along.
Maybe that’s because the Court’s duty is not only to analyze sacred texts but to protect those rights (“Life, Liberty and the pursuit of Happiness”) which the founders believed were "unalienable" and therefore not subject to a plebiscite.
When the Court has gotten that wrong – as in Dred Scott, which declared slaves property, Plessy v. Ferguson, which upheld racial segregation, and Korematsu, which allowed the internment of Japanese-Americans – it has disgraced itself.
When it has expanded human rights, it has redeemed both itself and America.