Consent of the Governed and Interpreting the Constitution

If consent of the governed means anything, we have to apply the Constitution in the way the people who ratified it understood it.   Otherwise we are imposing laws nobody consented to, which is tyranny.  It's easy to say that people who object to decisions like Roe v Wade and Obergfell are just misguided bigots.  But in fact, they are objecting to laws invented by the courts that were not lawfully adopted by the legislature or consented to by Constitutional ratification.  The ends don't justify the means.  The means change the outcome.  If the Supreme Court interprets the Constitution in ways that nobody consented to, there is no limit to the Supreme Court's power.  There is also no binding precedent, because any precedent can be reinterpreted to mean something entirely different.  The Supreme Court becomes a Supreme Revolutionary Council with essentially unlimited powers and life appointments for members.

Let me give you an example of how this works.  The 14th Amendment was passed in 1868, when homosexual acts were illegal in every state.  If the legislators who voted to ratify the 14th Amendment had known they were ratifying same sex marriage, it wouldn't have passed.  Obergfell should have been decided on the full faith and credit clause.  Any marriage validly performed in one state must be recognized in all states.  This would have left the states in control of who could marry inside their borders, but forced all states to recognize same sex marriages performed elsewhere.  Such a decision would have been consistent with the invalidation of the Defense of Marriage Act (DOMA), which conservatives liked because of the states rights reasoning, even though the outcome didn't go their way.  DOMA was invalidated because the Supreme Court ruled marriage was a state matter, and federal law could not interfere with it under the 10th Amendment.  A ruling on full faith and credit would have been much more easily defended as consistent with the original intent of the Constitution.   If Obergfell had been decided on full faith and credit, doubt about the permanence of Obergfell, including this article, wouldn't be necessary.  Since using the 14th Amendment was a stretch, Obergfell is a shaky decision.

How Liberals Win Taints the Outcome

The issue is not who wins or loses. The issue is whether we preserve the rule of law or not. When the Supreme Court struck down the Defense of Marriage Act, there were not many complaints from conservatives. They didn't like the outcome, but they loved the reasoning. The Court said marriage was a state, and not a federal, issue.

The problem with liberals is that they don't care how they win. If they have the Supreme Revolutionary Council, formerly known as the Supreme Court, rule that the Equal Protection Clause of the 14th Amendment mandates Gay Marriage, they're fine with that. Conservatives, like me, see that as a serious problem, not because of the outcome, but because of how it was reached. The 14th Amendment was drafted and ratified by Republicans in 1868, when homosexual acts were illegal in every state. It was intended to keep state courts in the former Confederacy from mistreating free blacks, especially freed slaves. The only bearing it had on marriage was mixed race marriages were made legal. It did not mention same sex marriage. It would never have been ratified if it did mention same sex marriage. The consent of the governed was given only to the 14th Amendment's meaning at the time it was passed. Reinterpreting it with a new meaning now is tyranny. Changing the Constitution was supposed to require an Article V ratification process. It was not supposed to be some far-fetched argument in a court case that even the judges writing the opinion don't really believe was the intent of the Constitutional wording or Amendment in question.

It was also unnecessary to get the same sex marriage outcome. Under the full faith and credit clause, it could easily have been held that a legal marriage performed in one state had to be recognized by all states. This would have left marriage a state decision.