On July 24, former Kentucky county clerk Kim Davis formally petitioned the U.S. Supreme Court to overturn its 2015 Obergefell v. Hodges decision, which legalizes same-sex marriage, marking the first significant challenge to the ruling since its inception. Davis, who was jailed in 2015 for refusing to issue marriage licenses to same-sex couples due to her religious beliefs, is appealing a $360,000 judgment against her for emotional damages and attorney fees, arguing that her First Amendment rights protect her from liability and that Obergefell was wrongly decided.
“Just like abortion, the left tries to tell us that [same-sex marriage] is untouchable, that this cannot be overturned. I’m not so sure that they’re correct about that,” says Liz Wheeler, BlazeTV host of “The Liz Wheeler Show.”
She reads a line from Justice Clarence Thomas’ concurrent opinion published following the overturning of Roe v. Wade: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
“‘Substantive due process,’” says Liz, “is this legal philosophy held by leftist jurists that reads rights into the Constitution where they are not enumerated.”
“It’s just a way of judicial activists – ideologues who are on the bench – to invent meaning to the Constitution where the Constitution had no such meaning.”
Like abortion, which is “guaranteed nowhere to anyone in the Constitution,” same-sex marriage is yet another example of substantive due process.
“Even if you’re pro-gay marriage, even if you are libertarian and you don’t think we should be telling other people what to do, if you read the Constitution of the United States, start to finish … is gay marriage ever referred to?” asks Liz. “No, it’s never referred to.”
“You cannot contest the reality that the Constitution of the United States contains no such reference to gay marriage directly or indirectly.”
“Even if you think that the legislature of the United States should make gay marriage legal, which you’re obviously wrong on that for multiple different reasons, that’s different than the Supreme Court pretending there is a Constitutional right to gay marriage in the Constitution when there’s not,” Liz explains.
If SCOTUS agrees to take Davis’ case, there’s a chance — albeit a “low” one, says Liz — that the Court might re-evaluate Obergefell and reverse its original decision.
“It’s probably not going to be heard by the Supreme Court,” she says, but “it should be because Kim Davis had her religious freedom … violated by the government, and she’s one of the only Americans right now that has standing to challenge Obergefell because she was hurt by it.”
However, even if Obergefell is overturned, it’s unlikely to change much in terms of who can legally get married, Liz explains. “The United States Congress has passed a piece of legislation codifying gay marriage to a certain extent. It requires any state that doesn’t allow same-sex marriage to recognize … any valid marriage from any other state. So it kind of effectively nationally forces gay marriage in all the states,” she says.
And yet, she hopes Obergefell is reversed anyway because what it will really be reversing is the idea that the government has the right to redefine a word.
“Marriage means the union between one man and one woman, and they said, ‘No, no, we’re going to redefine that. It now means the union between any two consenting adults regardless of their sex.’ When government has the power to redefine a word, they can redefine any word,” says Liz. “And if they can redefine words, if they are the arbiters of truth, then they’re tyrants.”
To hear more of her commentary, watch the episode above.
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