Richard Thompson and Erin Mersino of the Thomas More Law Center, the Christian right legal group that lost the Dover trial in such spectacular fashion, are quite unhappy with the Supreme Court for denying cert in all of the pending same-sex marriage cases. They tried to make their case in a ridiculous op-ed for Politico.
They do what conservatives nearly always do when the Supreme Court does something they disagree with — attack the very idea of judicial review itself and pretend that when “unelected judges” overturn laws — the laws they like only, of course — this somehow undermines democracy.
There is little more profoundly American than the concept that we are a nation of duly enacted, just laws. Monday’s Supreme Court decision not to hear cases regarding so-called same-sex marriage, however, turns this concept on its head in two ways. First, the decision undermined the fundamental basis of a democracy—that laws reflect the will of the majority. Secondly, today’s ruling robbed parties and states of their day in court.
Both arguments are utter nonsense. The second argument is false; the second is completely ass backwards. The Constitution that Thompson and Mersino claim to adore so much — the one that establishes what is “profoundly American” — was deliberately and explicitly designed to make sure that all laws do not, in fact, reflect the will of the majority. The entire point of the Bill of Rights was to make sure that no majority can violate the rights of the individual. That is what distinguishes the American Constitutional system of government from a pure, majoritarian democracy.
This is wrong as a matter of law and morality, and it represents an affront to democracy. These marriage amendments reflect the definition of marriage that has been in place for thousands of years and sought to prevent the redefinition of marriage to include same-sex unions. In each state, the marriage amendments were passed by the vast majority of the states’ voters, and the laws were struck down by unelected federal judges. The voice of the majority was silenced by appointed judges who hold lifetime appointments.
Anyone remember when Richard Thompson complained about “unelected judges” silencing the voters when they struck down part of the Affordable Care Act? Or the Bipartisan Campaign Reform Act? Yeah, neither do I. Because he isn’t really against those evil unelected judges overturning democratically-passed laws, he’s only against them doing that when he supports the law. But the arguments he makes are generic arguments against the very system that the Constitution establishes, all while claiming that the system designed by the Founding Fathers is un-American. Irony!