In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want.
That texts may be imaginatively interpreted to any end is not news — “The devil can cite Scripture for his purpose,” as William Shakespeare observed in The Merchant of Venice. The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea, but, to be fair, that is an easy provision to overlook, even for a mind as keen as Barack Obama’s, since the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right.
But scriptural interpretation is a funny business. I grew up on the edges of some wildly entertaining fundamentalist circles in West Texas, and I very much enjoyed hearing mail-order theologians explain how, sometime between turning water into wine at that famous wedding and pouring out a round for the guys at the Last Supper, Jesus very subtly declared alcohol verboten. Put any given text on the rack, and you can prove Ronald Coase’s dictum: If you torture the evidence enough, it will confess to anything.
Constitutional torture is an art, and Chief Justice John Roberts has emerged as its Andy Warhol: an impresario who will put his name on anything.
It is uncomfortable to think about, but our Supreme Court functions in much the same way as Iran’s Guardian Council: It is a supralegislative body of purported scholars, distinguished by ceremonial black robes, that imaginatively applies ancient doctrines “conscious of the present needs and the issues of the day,” as the ayatollahs over there and over here both put it, deciding — discovering! — what is mandatory and what is forbidden as the shifting currents of politics dictate. The main difference is that the Iranians take their sharia rather more seriously than we take our constitutional law: John Roberts’s opinion in Burwell wasn’t just wrong — wrong can be forgiven — it was embarrassing, craven, and intellectually indefensible. Antonin Scalia was right to let him have it with both barrels, but he’d do better to resign from the Supreme Court — it is difficult to see how an honorable man could be associated with it.
The idea that lurking in the penumbras of our 18th-century Constitution is a fundamental national right to gay marriage is simply preposterous. It is not there.
The gentlemen who wrote the Constitution did not get around to enfranchising women or abolishing slavery, but they snuck in a constitutional right to gay marriage that we’ve somehow overlooked for 228 years or so: No mentally functional adult, regardless of his views on gay marriage, should be expected to pretend that that is true.
I am in favor of arranging the laws to permit gay couples to arrange their domestic affairs in whatever way they see fit, and to have those affairs blessed by whatever authorities are inclined to bless them: Episcopalian church, Sam’s Club, Taylor Swift, Grand Mystic Royal Order of the Nobles of the Ali Baba Temple of the Shrine — it’s a free country, Sunshine. Unlike Barack Obama, I did not arrive at my views on same-sex affairs recently and at a moment of political convenience. But, that being said, the idea that lurking in the penumbras of our 18th-century Constitution is a fundamental national right to gay marriage is simply preposterous. It is not there. It is a fiction, and, just like the Harry Potter novels, the fact that it is very, very popular does not mean that it is not fiction.The ranks of the Right are filled with a splendid array of gifted and erudite lawyers with unshakeable commitment to the rule of law. Many of them are my friends and colleagues. But their arguments always leave me a little bit cold. We can debate all day about how many Angels in America can have their first dance on the head of Anthony Kennedy’s pen, but we know that the Court’s liberals are going to vote one way, that some of its conservatives will probably vote another, and that John Roberts and Anthony Kennedy will, if the goblins in their heads are sufficiently insistent, ratify whatever Starbucks-customer consensus exists for 80 miles on either side of Interstate 95. That the chief justice went one way on health care and another on marriage tells us nothing at all about the law or the Constitution: It tells us about John Roberts.
And that is the problem.
Asked what he thought about Western civilization, Mohandas K. Gandhi supposedly quipped that he thought it would be a good idea. Conservatives, if we’re being honest, might say the same about the rule of law. It would be a good idea, at least an interesting experiment. For the moment, though, there’s only power, the men who have it, and the things they do with it.
— Kevin D. Williamson is roving correspondent at National Review.