Does the Supreme Court Make Law?

Photo by Mr. Kjetil Ree.
Photo by Mr. Kjetil Ree.

Today I heard a Christian radio program talking about the case currently before the U.S. Supreme Court dealing with same sex “mock” marriage (there is no such thing as same sex marriage, only an imitating of marriage by members of the same sex). It grieved me to hear the host state numerous times that through this case the Court might make same sex marriage “national law.”

While our current public office holders may be sufficiently duped and cowed so as to treat the Court’s decisions as law, the fact is that the Supreme Court cannot make law and its decisions are not law, they are merely “opinions” applicable only to the parties to the case at hand. It’s bad enough that the courts think they have the power to make law, but we don’t need Christian radio hosts reinforcing that falsehood in people’s minds. No offense to the commentator, I’m just asking all of us to stop, think and understand how our system of government is actually designed to work under the supreme law of the land, the U.S. Constitution.

Attorney and Constitutional scholar, Dr. Herb Titus, gives a good explanation of the matter in an article addressing Roe v. Wade and stating why “Abortion is NOT Legal.”

5 thoughts on “Does the Supreme Court Make Law?

  1. david andre davison


    Yes and no. Yes, the courts don’t technically make laws, but they can invalidate them. If the Supreme Court finds the State bans on Same-sex Marriage are unconstitutional, then the laws will no longer be enforced. Likewise, states will start issuing marriage licenses in Ohio, Michigan, and elsewhere, where the appeals courts upheld their bans.

    Already, marriage licenses have been issued in states where the Federal Courts overturned state bans. So, it does appear that courts do create laws in practice. It isn’t what our forefathers had in mind, but when has that ever stopped our Federal Courts?

    Personally, I am hoping the justices uphold the right of the states to decide what constitutes a legal “marriage”.


  2. Dave – I’m sure the Christian radio host that I mentioned was meaning that whatever the Supreme Court does will have the “effect” of law in that it will be treated as being law and that’s why the case is indeed very important. Nevertheless, I agree with Dr. Titus and the statements in his article and contend that the real problem lies with the people that we’ve elected to state offices who ether lack the knowledge to realize that the Court’s decision is not law, or they lack the guts to stand up to the Court in the manner that Dr. Titus recommends. We agree that the outcome of this case is important, I’m just saying that electing different people to fill our state offices is even more important.

  3. T.kay.

    From a constitutional perspective, the Supreme Court has stepped entirely outside its boundaries by simply taking the case. The federal court system, including the Supreme Court, has limitations as to the types of case they can hear, and they are listed in Article III, Section 2 of the Constitution. There aren’t very many types of cases that federal courts can hear. This FACT is expounded on by the founding fathers in the Federalist Papers, specifically, Federalist No. 80 (second paragraph) and Federalist No. 83 (eighth paragraph). The Supreme Court is usurping its authority by claiming it can even hear cases on the topic. Furthermore, the other branches of federal gov’t are stepping outside there boundaries anytime it even approaches the subject. The federal government’s powers are few and defined. What powers they do have are enumerated in the Constitution, and, per the 10th Amendment, powers concerning ALL topics not covered by the Constitution are reserved to the PEOPLE and the STATES. This topic then is a matter for the people and their states to decide upon. State level is the highest this matter can lawfully go per the Constitution. The topic is entirely outside the authority of any branch of the federal gov’t to deal with. I wrote letters to my Congressman and Senators elaborating on this and asking that they not let the Supreme Court hear cases on the topic. Their responses? None. Total silence. At a minimum, they usually respond with a polite note stating “Thank you for your letter. I appreciated hearing your views…”, but on this one they were all totally silent.

    From a Christian perspective, God created marriage and created it as a one man + one woman arrangement. It is a religious institution. It is God who joins them together, and he warns man against separating them (all from Matthew 19:4-7). As such, marriage is not something government has any authority to grant marriage status over, including heterosexual marriages. For a gov’t to have an office such as “Justice of the Peace” and conduct civil marriages is not biblical. Gov’t do, however, have an obligation to honor the religious institution of marriage.

    1. And now you’ve opened a whole topic unto itself that the church, which is contending for Biblical standards of marriage, is almost universally blind to – the fact that government cannot institute marriage or cause marriage to take place or exist. Only the creator of man has the ability and authority to make two members of his creation to be a single unit of that creation. The most government can do is to recognize which members of its society God has made to be one, then treat them accordingly. I’m not condemning my brethren as I was once blind to this as well. Sadly, we have libertarians saying that government should be totally blind to the issue, have nothing to say about it and just let anyone live with anyone and call it whatever they want, while Christians are in great part treating government as having the power of God to make two to become one flesh, then begging and pleading with government to not give that power to homosexuals.

  4. Pingback: Does The Supreme Court Make Law? – Dave Levine Online

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