The question addressed by my post was whether Obergefell is law, not whether it is good. It is bad.
My post didn't frame the issue in terms of whether or not Oberfefell was good or bad.
On its face, the decision is an interpretation of the Constitution. It purports to apply the Constitution to the case of so-called same-sex marriage.
Which is just a ruse. Kennedy appeals to the 14th amendment equal protection clause to divine a Constitutional right to homosexual marriage. That, however, is a legal travesty. As one source points out:
The Thirteenth Amendment abolished slavery throughout the United States. See U.S. Const. amend. XIII. In response to the Thirteenth Amendment, various states enacted "black codes" that were intended to limit the civil rights of the newly free slaves. In 1868 the Fourteenth Amendment countered these "black codes" by stating that no state "shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States... [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws." See U.S. Const. amend. XIV.
i) So that concerns racial equality, not homosexual equality. The 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, had no intention of making homosexual marriage a Constitutional right.
Obergefell is not an interpretation of the Constitution. Rather, it reassigns the 14th amendment to a referent (homosexual marriage) which the legislators and ratifying states never contemplated. The 14 amendment cannot mean that or refer to that.
ii) Furthermore, it's not just that they couldn't foresee that issue. Rather, the 19C Congress which passed the 14th amendment, and the 19C states which ratified the 14th amendment, would undoubtedly be opposed to homosexual marriage, had that been proposed for their consideration. Consider the prevalence of anti-sodomy laws back then. Indeed, until they were struck in 2003.
So that's not a logical extension of a general principle. That "interpretation" of the 14 amendment isn't evolutionary, but revolutionary.
Obergefell is an exercise in judicial make-believe. Pretending there's Constitutional authorization for homosexual marriage.
The constitution unequivocally gives the judiciary the authority to apply the Constitution to cases: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution" (Article 3, Section 2).
You keep ducking the issue of judicial supremacy. The question at issue was never whether the judiciary has the authority to interpret the Constitution, but whether the judiciary has ultimate authority to interpret the Constitution. Does the Constitution say that? No. Did the Founding Fathers grant the judiciary the final say on what the Constitution means? Not from what I've read.
Moreover, your appeal piggybacks on the false premise that Obergefell is an interpretation of the Constitution, when, in fact, that's a transparent ploy.
Even assuming that the minority opinion of the Court was an objectively better interpretation…
This isn't merely a question of better or worse interpretations. Rather, the majority didn't even attempt to offer a good faith interpretation of the Constitution. That's a game of pretend. What they did is begin with their social agenda, then foist a patently anachronistic import onto the 14 amendment. Their judicial opinion lacks any legitimacy in this case.
So it becomes an issue, not of Constitutional authority, but judicial authority. Not what the Constitution warrants, but what the Court warrants–in spite of the Constition. Does the judiciary have unlimited authority?
On its face, Obergefell is a judicial interpretation of the Constitution.
i) It's not the duty of executive or legislative magistrates to be party to a judicial charade. They should not be coconspirators in that duplicitous exercise.
ii) How is your position regarding the judicial "interpretations" of law any different than the Catholic position regarding magisterial "interpretations" of Scripture? Stipulating that the Constitution means something doesn't make it so, anymore than stipulating that the Bible means something doesn't make it so.
iii) Finally, your argument is self-defeating. In your post you say:
Within the law, we can remove Supreme Court justices for bad behavior and install those who will overturn bad precedent. Alternatively, we can amend the Constitution to overcome bad judicial precedent regarding the Constitution.
But since you refuse to challenge judicial supremacy, your appeal to impeachment or the amendment process is preemptively derailed by the very institution you presume to rein in, given the incontrovertible prerogative you ascribe to it. If the Constitution only means whatever judges say it means (a la Chief Justice Hughes), then they can "interpret" the Constitution to immunize judges from impeachment or forbid the abridgment of their authority.
They can "interpret" the Constitution to mean the US president is the English monarch, Congress is Parliament, and Anglicanism is the state religion.
They can interpret the Constitution to mean judges have the authority to appoint their own successors. They can interpret the Constitution to mean the Chief Justice is Command-in-Chief (rather than the president).
ii) Isn't the very purpose underlying the Bill of Rights to curtail the scope of gov't? What's the point of having a written Constitution in the first place if judges have unrestricted freedom to substitute their own values? As Jefferson said:
Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction.
To which Felix Frankfurter added:
The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.