In two convoluted June rulings on gay rights, five members of the U.S. Supreme Court signaled their intention to rewrite the Constitution. Far from a cause for celebration, the court’s legal incoherence is best described as breathtaking.

In Hollingsworth vs. Perry, the justices deferred to a lower court’s decision imposing gay marriage in California because the challengers did not have “standing” as private petitioners. It is the executive branch that must defend state law (enacted by referendum or statute) and since California Gov. Jerry Brown refused in the case of Prop. 8, there was no “actual controversy” to settle.

Fair enough. But how then to explain the decision in United States vs. Windsor, where the court reversed itself by striking down a section of the Defense of Marriage Act (DOMA) that prohibited federal benefits for gay couples? This even though executive officials in the Obama administration (just as those in the Brown administration) also refused to do their duty and defend the law?

The justices mumbled something about Congress’s “substantial adversarial argument” as an adequate stand-in for the executive’s abdication, but that only served to betray the court’s eagerness to rule in favor of gay rights on both issues

Indeed, Justice Anthony Kennedy’s less-than-sincere assertion that DOMA intruded into an area “central to state domestic relations law applicable to its residents and citizens” was quickly subverted when he also declared that the law sought to “injure” gay couples by violating the Fifth Amendment’s “basic due process and equal protection principles applicable to the Federal government.”

Kennedy’s federalist pretext should be seen for what it is: a canard. As Justice Antonin Scalia suggested in his withering dissent, the only precedent set here is the majority’s desire to impose its morality on every state in the union as soon as the next marriage case arrives at the court’s step. For if “due process and equal protection” can overturn federal law, you can be sure that the very same language in the 14th Amendment will overturn state law.

In fact, Kennedy’s real intentions have been clear since he wrote the opinion in Lawrence vs. Texas striking down state sodomy laws, and his desire to actually rule in Hollingsworth was another clear signal of what’s in store.

Proponents of this pseudo equality on marriage naively suggest you shouldn’t treat people differently. Wonderful, let’s start with smokers and rich people — both of whom are handled quite differently under the law. Of course, a serious reading of equal protection requires only that state law treat people — regardless of background — who are in similar circumstances in a similar way.

To wit: All citizens who smoke are discriminated against. Just like all people who earn a certain income are in higher (i.e., unequal) tax brackets. The law itself does not have to be equal (most laws inherently are not); it just has to be applied equally to all subject to it.

Personally, I find no-smoking ordinances and certainly progressive income-tax brackets extremely offensive. But they are not unconstitutional violations of equal protection. The same is true for marriage restrictions.

It is the prerogative of the state to determine the outcome of these polarizing issues — just as Minnesota did with marriage in the last legislative session. And now those who voted one way or another will stand for re-election — unlike Supreme Court justices.

Unfortunately, a growing number of Americans do not understand that the fundamental role of the judicial branch is not to determine whether a particular law is good or bad; it is to determine if it falls outside the bounds of self-government.

For as James Madison so aptly put it: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”



Jason Lewis is a nationally syndicated talk show host based in Minneapolis-St. Paul and the author of “Power Divided is Power Checked: The Argument for States’ Rights” from Bascom Hill Publishing. He can be heard locally from 5 to 8 p.m. on NewsTalk AM1130 and on