In the case of Obergefell v. Hodges the US Supreme Court has interpreted the 14th Amendment to the US Constitution as meaning that all 50 States must recognise and licence same-sex “marriages”.
The decision was by a majority of 5 – 4, the smallest possible margin. This is very unfortunate for a decision with implications that reach wide beyond the issue of homo-“marriage” itself. The majority decision was given by Justice Kennedy, the notorious “swing voter”, supported by Ginsberg J, Breyer J, Sotomayor J, and Kagan J. There was a dissenting Judgment given by Chief Justice Roberts, joined by Scalia J, Thomas J, and Alito J, a dissent by Scalia J supported by Thomas J, another by Thomas J supported by Scalia J and, finally, a dissent by Alito J supported by Scalia J and Thomas J. As a result, while there is only one judgment, there is the maximum possible amount of four dissenting opinions, each of them more intellectually and legally coherent than the sentimental yet poorly argued majority judgment. If the decision were made on the basis of arguments rather than on votes, the outcome would have been different.
What is “marriage”, if naturally sterile same-sex “marriages” are to be put on equal footing with the marriage between a man and a woman? The decisive passage is:
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.
This esoteric but rather meaningless compound of words is probably what Justice Scalia in his dissent means when he refers to “straining-to-be-memorable passages” in the Court’s judgment. While most of us would have thought that the nature of marriage is that of a binding commitment, the claim here is that it is a search for freedom.
But the dissociation from reality becomes even more apparent when the Court says:
By giving recognition and legal structure to their parents’ relationship, marriage allows children to understand the integrity and closeness of their own family and its concord with other families…
As everyone knows, children living with (and being cared for by) a same-sex couple do not live with their parents. At best, they are living with one of their parents and one person who is not their parent, at worst with two strangers. It follows that same-sex “marriage” will achieve the exact opposite of what the Court is claiming, i.e. it will prevent children from understanding their relationship to their true parents, and the true meaning of family. And of course the “concord” with a true family is merely a legal fiction.
Finally, what is the basis for the decision? Justice Anthony Kennedy, writing for the majority, has this to say:
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning…
The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.
Thus, it appears that the re-defined meaning of marriage has its sole basis in the fact that five of the nine Supreme Court Justices believe they know better than the authors of the US Constitution, the authors of the 5th and 14th amendments to than Constitutions, the electorates and legislators of 37 out of 50 US States and, indeed, the cultural traditions of all human societies that ever have populated the Earth. What a hubris!
The dissenting opinions are interesting to read because, rather than answering the question whether same-sex “marriages” are good or bad, they expose how radically the majority judgment stands in contradiction to the Constitution it pretends to protect, and how dangerous a threat it poses not only for the institutions of marriage and family, but indeed to the democratic system.
The dissenting opinion by Justice Clarence Thomas focuses on the novel understanding of “liberty” that underpins the majority’s reasoning. While the traditional understanding of liberty in the US Constitutions, much in line with the thinking of the age of Enlightenment, was that man was naturally born free and that government should not interfere with that natural liberty except where strictly necessary, the new notion of “liberty” extends to entitlements that would not even exist if the government didn’t exist:
In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. …..
“[T]he common idea of liberty is merely negative, and is only the absence of restraint.” ……. “Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace” ……..
Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers [of the US Constitution] would have recognized.”
This point is of great interest, given that a similar argument could be made with regard to the notion of “private life”, which often is used by the European Human Rights Court (ECtHR) as a basis for new rights claims – including with regard to same-sex “marriages”. But while it may be argued that sexual intimacy between two persons of the same sex pertains to their “private lives”, the same is obviously not true of marriage: couples who want the state to validate their “marriage” are seeking for a public status.
The dissent by Justice Antonin Scalia is impressive both through its vehemence and the clarity of its reasoning. Like all of the dissenters he makes it clear that his objection is not to same-sex “marriage”, but against it being imposed by five judges who bend the Constitution to make it suit their personal political preferences:
“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court”…….
He contrasts the difference between a new idea, such as same-sex “marriage”, acquiring force of law not as a result of legislative debate and democratic vote, but through judicial diktat:
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.” …..P4″But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect”………P6″The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
Justice Samuel Alito makes a similar point:
The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.
And he points out the long term implications of this judgment for the future role of the Supreme Court:
Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
As one might expect, the Dissent by Chief Justice John Roberts (to which the three other dissenters adhere) is more restrained – but precisely for that reason it carries even greater weight:
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… Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment.
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”
Indeed, with this judgment, same-sex “marriage” is the result of an immense and systematic power abuse of (parts of) the judiciary, whereas the people’s will, expressed through parliamentary votes and popular referendums, was overwhelmingly opposed to it. This is a stain that the supporters of redefining marriage will never get rid of.
Very remarkably, Chief Justice Roberts goes as far as to compare this decision to the Supreme Court’s infamous Dred Scott v Sandford case of 1857 where the decision to extend the rights of slave owners throughout the entire United States including the States where slavery was prohibited was a major cause for the outbreak of the subsequent American Civil War:
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford. There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so…. Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox.
The Chief Justice also warns that the logic of the decision by the Supreme Court will lead to legal cases demanding Polygamy, Polyandry and Plural Marriage:
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people… Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.“
And he, like the other dissenters, gives a warning regarding the long term implications of the Courts decision:
The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing“formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone… What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.”
The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people… By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide… Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.
Finally, the Chief Justice warns that the lip-service the majority is paying to the freedom of religion and belief, the freedom of expression, and the freedom of conscience of those dissenting with its views lacks credibility:
Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercisereligion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led votersand legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage… That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fair minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
If you are among the many Americans—of whateversexual 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 to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.