Silber: If the shoe were on the other foot

BY KELIN SILBER | JULY 06, 2015 5:00 AM

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“So it is ordered.” These four words are the last four in Supreme Court Justice Anthony Kennedy’s majority opinion that effectively made same-sex marriage legal and a right in every state. It’s about time for equal rights, and I am very excited about the 5-4 decision. So the words “so it is ordered” are indicative of progression, unity, and a newfound forward thinking that a large part of the country has longed for.

The Supreme Court legalized same-marriage, which provides a necessary boost toward equality in this country. However, the nine appointed members have the power to enact nationwide rulings. And the potential for misuse of that is scary.

The political ground among the branches of government switch rather frequently because of the bipartisan system, and that often leads to an intolerant view of differences. When a relevant case makes its way to the highest court, the court makes decisions that put a nationwide ruling into effect. This can only be overturned with a later court case that overrides precedent or by enacting a constitutional amendment.

“So it is ordered” is how it came about, but that was not the right way to do it. As glad as I am that it finally happened, the opposite outcome should be considered.

Were the Supreme Court to find same-sex marriage to not be protected by the Constitution, I would angrily question the idea that nine people (or five, in this case) could solely decide on a nationwide ruling. This puts far too much power into the hands of the appointed and takes way too much away from those elected, crippling the democratic process. The Supreme Court is meant to act as a check and balance.

In Chief Justice John Robert’s heartless dissent, he did bring up the point about this should be a legislative matter when he stated this could be “stealing this issue from the people.” Congress is meant to be responsible for decisions based on national legislation; the Supreme Court only steps in if Congress or another entity acts unconstitutionally.

It was fortunate, according to Politifact, that a majority of people in the United States favored same-sex marriage. In reality, the people did not have a say in the outcome of this.

If the decision were made in favor of the opposition, I would personally feel my governments systems of checks and balances completely out of order.  However, action was necessary because of the sheer functional inability of the current Congress.

And, because history is doomed to repeat itself, there will likely come a time where an active Congress inadvertently forces a decision of similar scope to be made by the Supreme Court.  This decision will affect everyone, and no one will have a representative to voice her or his opinion on the new ruling.

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