Chief Justice Roberts is not happy with role of High Court in gay marriage dissent

One day after siding with the majority in upholding federal subsidies for ObamaCare, Chief Justice John Roberts offered a dissenting opinion on gay marriage which was as much a disagreement on the matter in front of the Court as it was fortifying a reversal of decades of an overreaching Court.

In dissent, Chief Justice John G. Roberts Jr. said the Constitution had nothing to say on the subject of same-sex marriage. “This court is not a legislature.  Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.  If you are among the many Americans, of whatever sexual orientation, who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “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.”  The Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration.”

As for the state’s role, he said: “The fundamental right to marry does not include a right to make a State change its definition of marriage.”

With unaffected modesty, Justice Roberts’ dictum tacitly states he seeks an undemonstrative role for the Supreme Court.

Although baffled by his alleged defection on Obamacare, conservatives should rejoice at Roberts’ opinion: A close examination reveals Roberts’ dissenting opinion is rejecting the notion the High Court exists to frame laws and its exclusive function is to interpret the Constitution.  Roberts’ logic rests in his vivid memory of a court system which exercised restraint.

For liberals, Roberts’ opinion concurrently urges caution from using the court system to cleverly advance their “to-do” list:  His opinion hints at the prospective hazards for those constituencies of conscience who attempt to enlist the High Court’s intrusion into matters which belong in individual states or Congress and may be dealt catastrophic defeats.

While traditionalists were thwarted, they should not despair:  Roberts’ shaping of the court continues to reject decades of the High Court crafting laws instead of decoding our Founders’ greatest instrument.

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