Markandey
Revisiting Obergefell vs Hodges
Markandey Katju 30 Jun 2022

Revisiting Obergefell vs Hodges

Roe vs Wade is likely to be overturned by the US Supreme Court, as the leaked draft opinion of Justice Alito indicates, and I have in my article published in indicanews.com said that I agree with Justice Alito.


For the reason given in my article ( that it is for the legislature, not the judiciary, to make law ) the US Supreme Court's decision in Obergefell vs Hodges, 2015 should also be reversed.

By a 5-4 majority the Obergefell decision directed all states in USA to licence gay marriages. In USA some states had recognised such marriages, but others had not. But by this decision even states which had not recognised such marriages were directed to recognise and licence them, even those gay marriages performed outside the state.. This was surely assumption of a legislative role by the judiciary. How can the Court direct that a law made in some states will be applicable in all ?


As observed by Chief Justice Roberts in his dissenting judgment :
" 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. "

Marriage was traditionally understood as a union between a man and a woman. If this definition is to change that should be done only by the legislature, not the judiciary. Justice Scalia in his dissenting judgment has called the majority verdict a ' judicial putsch ', and that is exactly what it is, a decision by 5 unelected judges imposed on the 320 million people of America.

The majority view relied on the due process clause in the Fourteenth Amendment to the Constitution. But I fail to see what that clause has to do with gay marriages. That clause only says that no one shall be deprived of his life, liberty or property except by due process of law. What has this to do with gay marriages ?

As observed by Justice Alito " Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. ---What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation ".
In the name of judicial activism judges cannot cross their limits and take over the function of another organ of the state. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers between the three organs of the state, the legislature, executive and judiciary, and each organ must avoid trespassing into each others domains, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
Justice Frankfurter of the U.S. Supreme Court in Trop v. Dulles (1958) observed : " All power, in Madison's phrase, is of an encroaching nature. Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint .

Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. 

It is not easy to stand aloof and allow want of wisdom to prevail to disregard one s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath ".

In Lochner vs. New York 198 US 45(1905) Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a `liberty of contract theory, thereby enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Connecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention . In `The Nature of the Judicial Process Justice Cardozo remarked : The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness . Justice Frankfurter has pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter s `Some Reflections on the Reading of Statutes ).

It is time Obergefell is reversed.
Did you find this write up useful? YES 1 NO 0
Marcus Connon Evelyn   21 Feb 2024 2:42am
Communication is the lifeblood of any relationship. It helps to build trust, establish understanding, and foster emotional connection. However, in today's read more
Reply
Chantelle Thatcher   26 Jan 2024 5:19pm
Email: prowizardgilbertrecovery(@)engineer.com & Telegram: @Pro_Wizard_Gilbert_Recovery Finding out that your partner has cheated on you is a terrible read more
Reply
Micaela Aguilar   23 Jan 2024 12:07am
Infidelity can leave individuals feeling lost and betrayed. Finding closure becomes essential for healing and moving forward. DANIEL MEULI  WEB RECOVERY read more
Reply
Terry Joyce   15 Jan 2024 11:26pm
Email: prowizardgilbertrecovery(@)engineer.com & Telegram: @Pro_Wizard_Gilbert_Recovery Accessing your partner's mobile phone is usually something that read more
Reply
Jose Ball   8 Nov 2023 4:40am
With my doubts dancing around like a circus troupe in my mind, I made the decision to go all in and give Lee Ultimate Hacker a try. I followed their simple read more
Reply
Carl Carolyn   6 Nov 2023 2:09am
Unfortunately, many people deal with adultery in their relationships. Technological developments have made it simpler for people to act secretively, which read more
Reply
Benjamin Evelyn  6 Nov 2023 1:58am
S Hacker operates by using advanced methods to obtain data from a targeted phone remotely like that of your cheating spouse. It's similar to having a read more
Reply
Jennifer Ryan   2 Nov 2023 4:23am
When it comes to uncovering the truth about a cheating partner, Digital Assets Recovery works its magic. This incredible tool has the power to unveil read more
Reply
Marina Nunier   1 Nov 2023 9:09pm
It's been six months now since I hired Cyber Genie Hack Pro, a team of professional Black hat hackers to gain full access to my ex-husband. It was a trying read more
Reply
Felix Niederhauser   31 Oct 2023 12:08am
Has your phone been acting a little peculiar lately? Maybe it's been making strange noises, opening apps on its own, or sending text messages to your read more
Reply
Jorge Pedro   27 Oct 2023 2:30am
It was a cloudy Sunday morning when I began to sense something was amiss in my relationship. Instead of letting my suspicions consume me, I decided to read more
Reply
Ivan Johnnie   26 Oct 2023 5:39am
In the end, the truth was revealed, and though it wasn't the outcome I had hoped for, I am grateful to the Adware Recovery Specialist for their assistance. read more
Reply
Vicki Henry   17 Oct 2023 4:26am
I am glad that Pro Wizard Gilbert Recovery was able to successfully recover my phone from hackers. I have heard many positive reviews about their services, read more
Reply
GABRIEL   29 Aug 2023 7:59pm
Investing in cryptocurrencies is a good idea, but when I first started, I made a mistake and invested in the wrong company, which took over 36,000 Dogecoin read more
Reply
mabel   15 Aug 2023 9:12am
They render genuine services to individuals world wide, they are more secured group of people in Netherland, who deal with cyber issues of all kind of read more
Reply
Destiny Della   4 Jul 2023 7:09am
EXPRESSHACKER99 @ GMAIL COM the best hacker of the year, This hacker has been giving me the best update on my spouse phone right from January till date read more
Reply
Sandra Rivers   14 Dec 2022 2:50pm
HIRE A CERTIFIED AND GUARANTEED CRYPTO RECOVERY AND PHONE SPYING EXPERT AT REMOTESPYTECH Finding out that your husband or wife has been unfaithful isn’t read more
Reply
Christy Williams  21 Jul 2022 6:16am
Thankfully, I was able to escape losing my life savings on a fake binary investment platform. Actually, it was a case of losing and recouping. The scammers read more
Reply
×

C2RMTo Know More

Something Awesome Is In The Work

0

DAYS

0

HOURS

0

MINUTES

0

SECONDS

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.
×

SAARTHTo Know More

Launching Soon : SAARTH, your complete client, case, practise & document management SAAS application with direct client chat feature.

If you want to know more give us a Call at :+91 98109 29455 or Mail info@soolegal.com