Sen. Mike Lee is the latest conservative to offer highly disingenuous and hypocritical arguments against the Supreme Court, in anticipation of them ruling against him on marriage equality. As usual, every argument he offers applies to dozens of other cases with which he either agrees or would refuse to say he disagrees because the result would be so heinous.
“Where did the Supreme Court get the power to change the definition of marriage?” the caller asked. “And all the justices, all nine of them, even though they disagree, they all seem to think that they have the power to make that decision.”
“They don’t have that power, the Constitution didn’t give it to them,” Lee responded.
“There are a few who appear to take the position that something in the Constitution, something in the 14th Amendment in particular, gives them this power,” he said. “I strongly, strongly disagree with that viewpoint. I don’t think it does, and I think they are mistaken in that conclusion. And it think it’s wrong, I think it’s disruptive of the constitutional order for them to take a debatable matter and take it beyond debate, to take a state matter and take it to the federal government, not just to Congress, but to the Supreme Court, to a group of nine lawyers dressed in black robes who are not elected, but who are appointed for life. And I think that’s a big problem.”
So that means Loving v Virginia had to be wrong. After all, the Supreme Court doesn’t have the authority, according to him, to “redefine marriage” or to “take a debatable matter and take it beyond debate” or to “take a statement matter and take it to the federal government.” All of those arguments apply just as well to that case. And to Brown v Board of Education, so we would go back to legal segregation of the races as well. And to Griswold, so no more birth control.
If applied consistently, every single conservative argument would turn back the clock not just decades but more than a century. But they can’t admit that. They know they can’t apply their reasoning consistently because they know how wildly unpopular it would be if they were to say that Loving or Brown were wrongly decided. So they pretend that their arguments only apply to this case right now, not to all those other cases. Decade after decade goes by and their rhetoric remains word-for-word identical, without any recognition that it has always been wrong in the past.