To the Editor:
The Supreme Court has judicially enacted a result that was being achieved by the democratic process in state after state. Recognition of same-sex marriage is right and just, and is consistent with a remarkable change in public opinion for which every person who was open about his or her sexuality to relatives and friends deserves credit.
But my happiness for my gay friends and relatives is tempered because this is very bad constitutional law. Hard as it is for many to understand, while our Constitution insulates certain enumerated rights from being overridden by political majorities, it does not enact five justices’ personal conception of justice.
Nothing in the Constitution’s text or our history supports a finding that a right to same-sex marriage is a protected liberty interest. Nor can the Equal Protection Clause of the 14th Amendment (adopted in 1868) be reasonably construed to constitutionally require a change in the definition of marriage as it was universally understood until the beginning of this century.
Many will find this objection impossibly bloodless. But raw judicial power can enact results one despises as well as those one celebrates. I would have put my trust in the tolerance of the American people. It was winning and would have won.
HOWARD F. JAECKEL
New York
