P.S This was written in 2015, eight days after the Same-sex marriage case was decided.
The world does not ask for precision and logic in literature nor in inspirational pop-philosophy; it demands them in the law. This discourse is based on the recent decision by the Supreme Court of the United States in the case of Obergefell v. Hodges 576 U.S. _ _ _ (2015). The writer is of the opinion that the court redefined the meaning of marriage thus creating a new right; rather than interpreting the meaning of marriage as it has been known from time immemorial.
The judiciary as it is well known, is saddled with the responsibility of interpreting the law. To interpret simply put, means to explain the meaning of something. It thus follows that where there is nothing to be interpreted the power of the judiciary is inertia. As it would be an exercise in futility to place something on nothing an expect it to stand.
It is not the eight wonder of the world that the Supreme Court of the United States in the case supra, has deviated from the age-long definition of marriage being "the legal union between a man and a woman" to "the legal union between a man and a man or a woman and a woman". I do not disagree with the above definition on any other consideration, but one: the legal soundness of the decision in view of the function of the judiciary.
To interpret who a man or a woman is, needs no formal education as this is elementary knowledge to a pupil in elementary school and to the illiterate mother selling pepper in Lagere Market.
Forsooth, judges, in the course of interpreting the law, make laws. This, however, is done by interpreting an existing law and not by usurping the power of the legislature to make laws.
Judges, if my elementary knowledge of Legal Method is to go by, interpret the law within the confines of three major canons of interpretation: the Golden Rule, the Mischief Rule and Literal Rule.
In defining the Golden Rule, Lord Keith Lindblom in Alice Ellen Cooper v. Dean Charitable Foundation v. Greensleeves (2015) UKUT 320 (LC), quoting Lord Neuberger said: "in using the Golden Rule to interpret statutes words are prima facie to be given their ordinary meaning".
In consideration of the above definition, can we say that the majority in Obergefell's case adopted this canon of interpretation? We do not need the interpretative ability of Lord Denning to answer this question in the negative. Reason being that the definition of a man or a woman is clear to the legally blind.
In defining the Mischief Rule, Justice Barrett in Ocs One Complete Solution Ltd v. Dublin Airport Authority Plc (2014) IEHC 306, said: "the Mischief Rule assumed that the legislature does nothing without a reason, and so that there is a reason for the passing of every Act and every provision within it; this reason is the legal or social mischief that the Act or provision therein is intended to address: grasp that mischief you grasp what the Act or provision is intended to mean." The poser that will be put forward here is that is it a mischief for a man to get married to woman? Arguendo it were a mischief, I would come to the irresistible conclusion that the legislators who passed the law that defined marriage as the union between a man and a woman were gays. Still on that assumption, I would ask if they were gays, how did they give birth to their children? Well, I do not expect that question to be answered as I am not concerned with that in this discourse.
The third canon, as stated earlier is the Literal Rule. In defining this, we do not need to travel out of the continent to get a definition as our very own Kekere Ekun J.S.C in FRN v. Ya'u Mohammed (2014) LPELR-22465 (SC) said in defining the Literal Rule that: "the guiding principle in the interpretation of statutes is that where the words used are precise and unambiguous they must be given their ordinary and natural grammatical meaning." An attempt on my part to comment on the above dictum would be a restatement of what has been said earlier.
Having reiterated some of the trite principles of law guiding the interpretation of statutes, one would thus ask whether the Court in the case at hand gave consideration to any of the aforementioned canons? or it went on a wild goose chase by redefining the age-long meaning of marriage, thereby usurping the function of the legislature? I will, without the fear of being disagreed with, answer the latter question in the affirmative.
What the Supreme Court of the United States has done by premising its decision on the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause, Due Process Clause, has paved way for a number presumably ridiculous law suits seeking for the enforcement of their "liberty".
If we are to go by the logic in the argument- which prima facie supports the action of the Court to make law- used in coming to the decision in the instant case, why would a person who has sexual relations with an animal be considered insane? Morevover, marriage is not defined, or has not been defined in Obergefell's case as "the union between two CONSENTING adults". You would agree with me that the Court, going by the the doctrine of stare decisis, interpreted "liberty" in the said Fourteenth Amendment to include the right to be legally married to an animal. It is in this wise, the Chief Justice of the United States Supreme Court, while dissenting said "if there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices why would there be any less dignity in the bond between three people who, in exercising their autonomy seek to make the profound choice of marry? "
What the majority of the United States Supreme Court has done is that they sat as super-legislatu
re to weigh the wisdom of legislation. The result of this in time to come, would be calamitous for both the people and the law. No better dictum captures this than that of the United States Supreme Court in Dred Scott v. Sandford 60 U.S (1857) when it said: "When fixed rules which govern the interpretation of laws are abandoned and the theoretical opinions of individuals are allowed to control the Constitution's meaning, we have no longer a Constitution; we are under the government of the individual men who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean".
Moving on, assuming without conceding, that the judgement is spot on in legal principle, I would assert that case-laws (from unelected Justices) do not carry equal operational force as laws made by the legislature (from elected representative) as the former is only a secondary source of law.
In conclusion, I will adopt the concluding paragraph of Chief Justice Roberts as mine. He said: If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means, celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment of a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
