Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part IV of V)

by Matthew Steven Bracey

In part III, we continued looking at religious liberty, looking specifically at how it’s threatened and what we can do to defend it. In this post, we’ll continue with the separation of powers, federalism, and the rule of law.

 The Separation of Powers and Federalism

 As with religious liberty, we also should recognize the importance of the principles of the separation of powers and federalism. The American founders knew the dangers that come from a government with too much power. As Lord Acton said: “Power tends to corrupt, and absolute power corrupts absolutely.”[1]

In Articles 1–3, the Constitution provides for three branches of government: legislative, executive, and judicial. Each of these branches has distinctive roles and responsibilities, and each of these branches should act as a check and balance over the other two branches.

The legislature makes laws and not the executive or judicial branches—“we the people” and not “he or she the president” or “they the justices.” The judicial branch’s proper role is, with laws, to hear and interpret them. It doesn’t make them, or shouldn’t.

And yet in Obergefell, the Court’s majority acted like a legislature.

In his dissent, Chief Justice Roberts notes, “This Court is[n’t] a legislature. . . . The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’. . . . [The founders] would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”[2] The separation of powers is being threatened.

The same is true with federalism. Like the separation of powers, it protects against too much power. Federalism doesn’t refer to a preference for a stronger federal government. It refers to the balance of power shared between the federal and state governments.

Whereas the separation of powers divides power among three branches, federalism divides it between two governing bodies—in this case, the federal and state. Power split three ways over multiple governing bodies has less chance of abuse than power too heavily concentrated in any one branch or government.

The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[3] So governmental power is supposed to be shared. It’s not supposed to be centralized.

Not only does federalism protect against the corruption of power. It also allows for different people with different beliefs to live together. That’s kind of the point. In his Obergefell dissent, Justice Alito says,

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, [it’s] likely that some States would recognize same-sex marriage and others would not.[4]

However, the majority of the Court didn’t apply federalism. They didn’t leave it to local communities and states. Justice Alito continues, “By imposing its own views on the entire country, the majority [helped] marginalization of the many Americans who have traditional ideas.”[5] Many voices in our culture echo the majority’s sentiment.

In response, we should note the importance of the separation of powers and federalism. As we find ourselves in a voting booth, we should vote for those who honor these principles best. As we find ourselves in conversation with others, we should lovingly and winsomely show how these concepts best protect their liberty.

The Rule of Law

Another important principle that guards against the abuse of power and protects the liberty of the people is the rule of law. The rule of law refers to the belief that the law is king, as Samuel Rutherford put it.[6] It just means that nobody gets special treatment.

The rule of law finds its basis in God. Because God is holy, He is just. And because God is just, His rule is[n’t] arbitrary, but fair and predictable. God’s law is a reflection of God’s person, and God’s judgment is consistent with that. The rule of law, then, is a very Christian idea. And we should recognize its importance for a society.

It means that no one’s above the law—not legislators, not executives, and not justices. America’s founders emphasized this principle. They’d served under a king who hadn’t respected the rule of law. They’d experienced firsthand the abuses that follow from its disregard.

To protect this principle, the Constitution should be interpreted according to its intent. Laws should be interpreted by their original, ordinary meaning. A law means what it does when it’s written. It doesn’t change according to the whims of the culture or justice.[7]

“What if a law is unjust? Shouldn’t judges change them?” If a law is bad or unfair, the people can change it through the democratic process. Justice Scalia said this,

Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine . . .  judges who[’ve] been there too long, imposing the[ir] demands on society. A system of government that makes the people subordinate to a committee of nine unelected lawyers does[n’t] deserve to be called a democracy. [8] [9]

Well, like these other concepts, the rule of law is threatened in our own day. When government leaders disregard the law they don’t like. Enforce ideas that run contrary to the actual law. Interpret the law to mean what it doesn’t actually mean. When these things happen, the rule of law is on shaky ground.

And this is what’s happened in Obergefell. Justice Alito says, “Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”[10]

In the last few months, the FBI’s investigation of a likely presidential nominee has also reminded us how the rule of law, and the consistency of its application, is being threatened.

Why is the rule of law so important? What can happen if it’s disregarded? The rule of law establishes consistency, predictability, and stability. It protects ordinary citizens. Like you and me. From a government leader’s unfair use of the law.

Whenever a nation, state, or locality would change the law, it should do so through just means. The failure to respect the rule of law results in inconsistent laws, unpredictable standards, and civil instability.

As with the separation of powers and federalism, the rule of law guards against the abuse of power and protects our rights. We should recognize its importance. Not just as a legal principle but a Christian one.

Again, it should shape the way we think about laws and policies, societies and governments. It should impact how we dialogue about current cultural and political events with our family, friends, and coworkers. And it should influence the types of government leaders we support.

We’ll conclude this study in part V, which will consider the principles of democracy and liberty.


[1] “Letter from John Dalberg-Acton to Bishop Mandell Creighton, April 5, 1887,” in John Neville Figgis and Reginald Vere Laurence, Lectures on Modern History (London: MacMillan and Co., 1906), Online Library of Liberty: A Collection of Scholarly Works about Individual Liberty and Free Markets, http://oll.liberty; April 19, 2016; Internet.

[2] Obergefell, 576 U.S ___ (Roberts, dissenting), at 2, 25.

[3] U.S. Constitution, amend. X.

[4] Obergefell, 576 U.S ___ (Alito, dissenting), at 7.

[5] Id.

[6] See Samuel Rutherford, Lex Rex (1644) (Edinburgh: Robert Ogle and Oliver & Boyd, 1843).

[7] See E. D. Hirsch, Jr., Validity in Interpretation (New Haven: Yale University Press, 1967).

[8] Antonin Scalia, “The Originalist,” California Lawyer; quoted in Emily Conley, “7 Masterful Quotes That Sum Up Former Supreme Court Justice Antonin Scalia’s Approach to Life and Law,” Alliance Defending Freedom, February 15, 2016; allianceedge/2016/02/15/7-masterful-quotes-that-sum-up-former-supreme-court-justice-antonin-scalia-s-approach-to-life-and-law; accessed April 5, 2016; Internet. See also Obergefell, 576 U.S ___ (Scalia, dissenting), at 2.

[9] Obergefell, 576 U.S ___ (2015) (Scalia, A., dissenting), at 5.

[10] Id. (Alito, dissenting), at 7.

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