A New Law of the Land

The Supreme Court clearly made history Friday with its decision establishing a constitutional right to samesex marriage. Many Americans today are surely either cheering or fretting over the 54 ruling. And we appreciate the joy that those directly affected understandably feel.

But what should concern folks is not just the decision’s impact on marriage, but the process that led to a new right for every American.

We’ve long endorsed the traditional definition of marriage. But we believe such profound moral disputes should only be resolved by the people through their elected representatives or a public referendum.

As Chief Justice John Roberts wrote in his dissent, the Supreme Court “is not a legislature” and judges must only decide what the law says, “not what it should be.” (Ironically, Roberts himself essentially did just that in his ObamaCare decisions.)

The always acerbic Justice Antonin Scalia went further, calling Justice Anthony Kennedy’s ruling for the majority a “judicial putsch” based on “showy profundities” that are “profoundly incoherent.” He saw it as a “threat to democracy.” (See his comments on the preceding page.)

There are other worries, too, now that samesex marriage is the law of the land.

Kennedy, for example, included a grudging acceptance that people who oppose gay marriage on religious grounds can “advocate” their dissenting views.

But the ruling may throw into question issues like tax exemptions for some religious groups that refuse to recognize samesex marriage.

And Justice Samuel Alito was surely right to warn that people “determined to stamp out every vestige of dissent” will use the ruling “to vilify” critics.

Bottom line: Gaymarriage foes, Alito said, may “whisper their thoughts” in private, but they “risk being labeled as bigots and treated as such” if they say so publicly.

This is not a hypothetical: In California, supporters of Proposition 8, which endorsed traditional marriage, were harassed and forced from their jobs.

As Alito put it, all Americans — whatever their views — should worry about what this ruling’s “claim of power portends.”

And about the dubious process that led to it.