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Supreme Court Justice Antonin Scalia wrote a dissenting opinion of the Court’s decision legalizing same-sex marriage, and called the majority on the high court a “threat to American democracy.”

In a similar vein, Chief Justice John Roberts charged Friday that the court had no right to intervene in what should be a democratic debate by the people, at the state level, over same-sex marriage.

“This court is not a legislature,” he wrote. “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.”

So let me get this straight. If the legislatures pass laws permitting slavery, or putting dissidents or others into concentration camps, the Supreme Court would have to “say what the law is, not what it should be.”

This is patently absurd, and Roberts knows it.

Regardless of what you think about gay marriage, both Roberts and Scalia are completely wrong.

America is not a democracy. Yes, we vote for our office holders. But office holders do not determine rights by majority vote. America is — or at least was supposed to be — a republic whose government is charged with respecting, upholding and enforcing individual rights. Individual rights, according to Thomas Jefferson and the philosophers who influenced him (e.g., John Locke) are inherent in human nature. We are born free. Government’s job is to enforce that birthright, not to create it. Government exists at the pleasure of the governed, not the other way around.

Consequently, in any decision arising before the Supreme Court, the ultimate issue to consider is: Are individual rights being upheld, or undermined?

Yes, this means sometimes striking down laws or other government policies whenever they violate individual rights. I’m sure Justices Roberts and Scalia would have no problem striking down an abortion law, or any other law they see as a violation of individual rights to life, liberty, property or the pursuit of happiness.

Both Roberts and Scalia run to “democracy” for intellectual shelter, in opposing a ruling they do not like.

The onus is on Scalia and Roberts to prove that the right of consenting, adult same-sex couples to legally marry is not an individual right. I have not yet heard an argument to prove or even support their claim that no such right exists.

What I have heard, over and over, is an assertion that, “marriage is between a man and a woman.” This is certainly what a lot of people believe, and it’s entirely their political right to believe it, and to act on that belief. For example, they should not be required, under the law, to provide wedding cakes or other products or services to gay persons, or to anybody else, of whom they do not approve. At the same time, this does not give them a right to prevent gay people from engaging in a legally binding contract.

The morality, or lack thereof, in the concept of gay marital unions should not be an issue for the law. The law is supposed to define rights, not determine what’s morally correct or not. In upholding the right to marriage for same-sex couples, the Court is not “making up” a right as it does, for instance, when it makes up a “right” to free medical care, or free education, or free housing. These made-up, false rights actually violate rights, because some are forced to pay for the goods and services of others. A right to a private contract, as in a marriage, is not a violation of anyone’s right. It’s simply a recognition of a legal right that always existed, only it didn’t come to the forefront because most people did not wish to face the fact that same-sex relationships exist.

If Roberts and Scalia were right, that democracy is the fundamental principle behind America’s system of government, then we would be forced to abide by anything the legislature chooses to impose on us. That could include anything from laws outlawing abortions, to laws mandating abortions, to jailing dissidents who criticize the government (or religion), to forbidding free speech on the Internet, to laws requiring the socialization of medicine.

Which brings us to Chief Justice Roberts. Until now, America has been forced to endure a false alternative when it comes to the ideology of justices. On the one side are the “liberals” or “progressives,” who generally uphold individual rights in the area of sexual relationships and reproduction; while they routinely violate them in the areas of economics, education and health care, demanding that government impose a monopoly control on these sectors, forcing some to pay for the goods and services of others. Conservatives, on the other hand, have been stridently against individual rights for gay couples who wish to marry, or women who wish to have legal abortions; while they have usually been more friendly to the concepts of private property, free markets and the right to make contracts in business arrangements.

With Justice Roberts, we get the worst of both possible worlds, at least insofar as we focus on these two major issues of our day, gay marriage and socialized medicine. With Obamacare, Roberts supported the tyranny of the majority, because the majority elected by Congress in 2008 wanted that law; with gay marriage, Roberts wants the majority to rule, not the rights of the individual, consenting adult.

This man hates rights, both the personal and the economic kind. He’s worse than either the judicial liberals or conservatives. Unlike them, he’s not half-wrong. He’s completely and consistently wrong.

Chief Justice Roberts, unlike his more typically conservative colleagues such as Scalia, is at least consistent — in the wrong direction. On both Obamacare/socialized medicine and gay marriage, he’s defiantly and predictably against individual rights. By the standards of adherence to the U.S. Constitution and the Declaration of Independence, whose philosophy of individual rights was the explicit basis for the Constitution, Roberts is arguably the worst Supreme Court Chief Justice ever.

The most sacred and important task of the Supreme Court is to act in favor of individual rights. Whether that puts the Court with the legislature and the President or against them, should not be its concern; whether that puts the Court with the majority or in the minority should not be its concern, either.

It’s bad enough that a majority of Americans no longer seem to grasp, nor necessarily even care about, the fundamental principle of individual rights and individual sovereignty over one’s life. Too many have given in to the idea that whatever the majority thinks in matters of rights should rule; in effect, that might makes right. Liberals and conservatives slash and burn each other, each claiming that the “majority” is on their side. So what? The individual is the smallest minority of all, and it’s the individual who is sacrificed under socialized medicine, or in denying the political right of people to legally marry whom they choose.

Rights are part of our nature. They’re a necessity of survival, and they are in reality our birthright. It’s astonishing that a man so completely clueless on this subject rose to the position of the highest justice in the land.

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Dr Michael Hurd

Dr. Michael Hurd is a psychotherapist, columnist and author of "Bad Therapy, Good Therapy (And How to Tell the Difference)" and "Grow Up America!" Visit his website at: www.DrHurd.com.

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