My social media accounts have been filled with celebrations of the Supreme Court’s ruling this week on same-sex marriage.  For the last decade this country has been lackluster in its approach to same-sex marriage with many states offering some confusing “civil union” that allows for a marriage-like contract without the definition of marriage.  It’s been confusing and wrong.  I’m glad to see our country progress toward being one of true love and equality.  It is truly beautiful when love wins.

There’s a caveat here though.  I have to lament the fact that it took the Supreme Court of the United States to force our society down a path of love and equality.  I’m not an attorney but I do believe the backbone of this country is the rule of law and that our society functions best when those laws are created by governments closest to the people (local first, then state, then Federal.)  Our Constitution sets up our representative republic but leaves us otherwise to define our own path.  The Bill of Rights, simply put, grants us certain rights essential to defend against tyranny.  The Supreme Court’s ruling was not based in any reasonable interpretation of the law, and that saddens me.

The Majority opinion in this case basically said that the Constitution grants the inalienable right for everyone to be happy.  Justice Kennedy wrote:

“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves,” Kennedy continued. “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The 14th amendment does not do that.  There is a legal argument that Justice Kennedy and others believe that suggests there is something called “substantive due process”  or the idea that there are certain fundamental rights that are free from government intrusion.  The problem is, the definition of what rises to the criteria of being covered under substantive due process comes from 9 un-elected lawyers…not from our representative democracy.  Chief Justice John Roberts captured my thoughts pretty well when he wrote:

 “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

I don’t want to be misunderstood here.  Love has won and I wouldn’t want that to change.  I do, however, expect better from my elected officials.  It was their job to enact legislation to make same-sex marriage happen.  As Justice Scalia once said:

“If indeed the current society has come to different views, that’s fine, you do not need the Constitution to reflect the views of the current society.  [Take, for example, the death penalty] Certainly, the Constitution does not require the death penalty, it just doesn’t prohibit it.  If the current society wants to outlaw the death penalty we have things called legislators and they enact things called laws.”

I want my children to know that I am very happy to see others finally realize their dream of marriage; I would not want to begrudge anyone happiness.  This victory feels a little like getting an A on an open-book test.  I’m happy with the result but really conflicted on how we got here.  America won but the rule of law did not.