Bench Memos

Law & the Courts

My NR Cover Essay, ‘After Obergefell

The new issue of National Review, hot off the presses, features on its cover my essay “After Obergefell: The perilous path ahead.”  (It’s also available at the link for just 25 cents.) Here are my opening paragraphs:

Just who do we think we are?” That was Chief Justice John Roberts’s plaintive query to his five colleagues — Justice Anthony Kennedy and the four liberal justices — as they imposed on the American people a radical redefinition of marriage that, as Roberts observed, “has no basis in the Constitution or this Court’s precedent.”

The legal question in Obergefell v. Hodges was not whether it’s a good idea to redefine marriage to include same-sex couples. It was instead whether the Court would foreclose the ability of the people in each state to decide that important question for themselves. In denying American citizens their rightful authority over that question, the Court majority acted unconstitutionally and displayed (in the chief justice’s words) an “extravagant conception of judicial supremacy.” How Americans respond in the coming months and years to this judicial usurpation will reveal much about who we think we are — and about what America will become. 

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